UC-NRLF 


9  14  MOO  m 


llniiumiiimmuwi 


OPHTHALMIC  JURISPRUDENCE 


T.  H.  S  HASTIT3,  M.  D.,  LL.  B. 


L 


GIFT  or 


UPTOMETRY  LiSRAR^ 


OPHTHALMIC 

JURISPRUDENCE 

A  REPRINT  FROM 

The  American  Encyclopedia 
of  Ophthalmology 

Where  the  Title  is  ''Legal  Relations 
of  Ophthalmology" 

BY 

Thomas  Hall  Shastid,  A.  B.,  A.M.,  M.  D.,  LL.  B.,  F.  A.C.S. 
Superior,  Wisconsin 


FOR  PRIVATE  DISTRIBUTION  ONLY 


CHICAGO 

CLEVELAND  PRESS 
1916 


V.  ,  Copyright  1916  by 

/^    )/         THOMAS  HALL  SHASTID 
All  Rights  Reserved 


/ 


TO 
HIS  WIFE 

Jf annie  Cnglisit  ^tagtib 

BUT  FOR  WH0SE:PATIENT  FORBEARANCE, 
KIND    ENCOURAGEMENT,    AND    CONTINU- 
AL MINISTRATIONS  THROUGH    HIS    MANY 
YEARS  OF  ILLNESS,  THE  MOST  OF  HIS  WORK 
COULD     NOT      HAVE      BEEN     PERFORMED, 
THE  AUTHOR  GRATEFULLY 
DEDICATES  THIS 
VOLUME 


31G255 


INTRODUCTION 


The  author  of  this  volume  is  well  qualified  by  study  and  experience 
to  discuss  the  legal  relations  of  ophthalmology.  He  made  an  excellent 
record  as  a  student  of  law  at  the  University  of  Michigan,  where  I  was 
one  of  his  teachers,  and  where  he  received  his  bachelor's  degree  in  law 
in  1902.  Before  taking  up  the  study  of  law  he  had  been  a  practicing 
physician  for  several  years,  having  received  his  first  degree  in  medicine 
in  1888  and  having  continued  his  medical  studies  during  the  following 
year  at  the  University  of  Vienna,  where  he  specialized  in  ophthalmology. 

To  those  who  had  observed  his  enthusiastic  diligence  as  a  law  student 
it  seemed  a  grave  misfortune  that  he  was  obliged,  because  of  an  injury 
to  his  throat,  to  abandon  his  project  of  practicing  law.  He  continued, 
however,  the  practice  of  medicine,  and,  fortunately,  taste  and  ability  for 
literary  work  have  enabled  him  to  render  valuable  service  to  his  two 
professions  through  his  writings  on  medico-legal  subjects. 

This  essay  is  a  reprint  of  an  article  which  appears  in  Volume  IX  of 
"The  American  Eyicyclopedia  and  Dictionary  of  Ophthalmology ."  The 
first  part  of  this  great  work  appeared  in  1913,  and  the  volumes  thus  far 
issued  (it  is  not  quite  completed)  afford  remarkable  evidence  of  the 
importance  of  the  science  of  ophthalmology.  The  neglect  with  which, 
before  the  writings  of  Doctor  Shastid,  the  medical  jurisprudence  of  this 
important  subject  had  been  treated  is  sufficiently  apparent  from  the  fact 
that  such  a  standard  work  as  that,  for  example,  of  Taylor,  practically 
ignores  it,  while  even  the  monumental  production  of  Witthaus  and 
Becker  (latest  edition)  in  its  section  entitled  ''Vision  and  Audition  in 
their  Medico-Legal  Relations"  is  devoted  (so  far  as  the  eye  is  concerned) 
simply  to  sight-testing,  simulated  blindness,  and  ocular  injuries.  The 
far  greater  thoroughness,  especially  on  the  legal  side,  with  which  Doctor 
Shastid  has  developed  his  subject  (for  it  may  well  be  called  his)  is 
obvious  at  a  glance. 

The  following  pages  abound  in  valuable  advice  and  suggestion  for  both 
the  physician  and  the  lawyer. 

The  author's  comparative  view  of  ophthalmo-sanitary  legislation  in 
the  United  States  and  four  leading  European  countries  ought  to  stimu- 


INTRODUCTION 

late  members  of  both  professions  to  work  for  an  improvement  in  Ameri- 
can sanitary  statutes. 

The  lawyer  who  has  occasion  to  consider  the  medico-legal  aspect  of 
injuries  to  the  eye  will  be  especially  grateful  for  the  chapter  on  ophthal- 
mic expert  testimony. 

While  the  last  quarter  of  the  book  is  devoted  to  a  discussion  of 
ophthalmo-surgical  malpractice,  there  will  be  found  in  it  much  besides 
a  consideration  of  this  special  subject :  it  may  be  that  the  la'wyer  who 
has  read  this  chapter  will  be  more  cautious  than  he  otherwise  would 
have  been  in  representing  a  client  claiming  damages  from  a  physician 
for  malpractice. 

In  its  original  form  as  an  article  in  the  Encyclopedia  this  work  is 
almost  inaccessible  to  lawyers,  and  its  reproduction  in  this  separate 
Volume  will  be  appreciated  by  those  of  the  legal  profession  who  are 
fortunate  enough  to  obtain  a  copy. 

JAMES  H.  BREWSTER. 

Denver,  Colorado, 

October,  1916. 


OPHTHALMIC  JURISPRUDENCE 


Inasmuch  as  the  subject  of  ophthalmic  jurisprudence  is  very  compre- 
hensive and  also  somewhat  intricate,  the  following  outline  of  the  con- 
tents of  this  article  is  offered  in  the  hope  that  it  may  serve  as  a  guide 
through  the  ophthalmo-jurisprudential  labyrinth. 

I.  Introduction:     Court  Systems  and  Basic  Legal  Principles  in 
America,  England,  France,  Germany,  and  Italy. 
II.  Ophthalmic  Expert  Testimony. 

A.  Legal  Considerations  in  America,  England,  France,  Ger- 

many, and  Italy. 

B.  Medical  and  Surgical  Considerations. 

Commonest  Injuries  with  which  the  Ophthalmic  Expert 

has  to  Deal. 
Simulation  of  Ocular  Injury  or  Disease. 
False  Attribution  of  Ocular  Injury  or  Disease, 
Exaggeration. 
Dissimulation. 
Visual  Economics. 
Questions  of  a  General  Nature  Relating  to  the  Power  of 

Vision. 
Condition  of  the  Eye  after  Death. 
Ocular  Signs  of  Sleep. 

Ocular  Indications  of  Poisoning,  Burning,  etc. 
Ocular  Signs  of  Identity. 

III.  OphthaliMO-Sanitary'    Legislation    in    the    Five    Countries: 

Ophthalmia  Neonatorum,  Optometry,  School  Inspection,  Vac- 
cination, etc.2 

IV.  Malpractice. 

A.  Legal  Considerations  in  America,  England,  France,  Ger- 

many, and  Italy. 

B.  Medical  and  Surgical  Considerations. 

1  So  far  as  the  Editor  knows,  Dr.  Shastid  's  chapter  in  Wood 's  ' '  System  of 
Ophthalmic  Operations"  (Chicago,  1911),  which  appeared  beneath  the  caption, 
"The  Forensic  Relations  of  Ophthalmic  Surgery,"  and  which  forms  the  basis  of 
the  present  article,  was  the  earliest  attempt  in  any  language  to  render  a  systematic 
account  of  the  law  relating  to  our  special  subject.  The  Editor  does  not,  of  course, 
ignore  the  numerous,  and  now  and  then  important,  monographs  which  had  dealt 
with  the  various  minor  aspects  of  ophthalmic  jurisprudence.  The  chapter  in 
question,  considerably  epitomized  and  brought  to  date,  appeared  in  Ball's 
"Modern  Ophthalmology"  (Phila.,  1913)  and  was  there  entitled  "The  Legal 
Relations  of  Ophthalmology."  The  present  article  also  bears  that  title,  but  the 
matter  has  been  again  revised  as  well  as  very  much  enlarged. — Ed. 

2  The  ophthalmo-sanitary  heads  are  all  considered  in  this  article  chiefly  as  a 
means  of  preserving  this  (the  major)  article's  continuity,  and,  therefore,  in  each 
instance  are  given  as  a  kind  of  abstract.  For  a  fuller  consideration,  in  each  case, 
see  Conservation  of  vision;  as  well  as  Care  of  the  eyes. 

1 


OPHTHALMje  JURISPRUDENCE 


Introduction  :  Court  systems  and  basic  legal  principles  in  America, 
england,  prance,  germany,  and  italy. 

In  order  to  comprehend  the  laws  relating  to  medical  experts,  the 
laws  on  which  the  science  of  visual  economics  and  the  like  depends,  and 
especially  the  laws  relating  to  medical  and  surgical  malpractice,  either 
in  this  or  in  any  other  land,  it  is  first  of  all  essential  to  comprehend 
the  system  of  courts  in  the  countries  whose  laws  are  under  considera- 
tion, and  also  certain  fundamental  legal  principles,  without  a  knowledge 
of  which  no  individual  laws  whatever  can  be  really  understood.  Nor  is 
this  task  so  formidable  as  it  might  at  first  appear.  Comparative  juris- 
prudence, though  a  realm  of  almost  infinite  extent,^  nevertheless  ex- 
hibits for  its  prominent  characteristics  certain  very  simple  matters, 
which  can  easily  be  stated  and  easily  be  understood.  And  only  these 
featural  affairs,  these  salient  characteristics,  will  here  be  attempted. 

Court  Systems  and  Basic  Legal  Principles  in  the  United  States. 

To  take  our  own  country  first,  because  it  is  the  nearest  and  because 
its  judicial  system,  though  the  most  difficult,  is  already  partly  known 
to  us.  In  the  United  States  two  entirely  distinct  judicial  systems  are 
daily  operating,  as  it  were  side  by  side — the  federal  and  the  state. 
The  federal  courts  exist  by  the  authority  of  the  federal  constitution — 
the  constitution  of  the  United  States  of  America — and  the  state  courts 
by  the  authority  of  the  constitutions  of  the  various  separate  states — 
Texas,  New  York,  Illinois,  etc.  The  federal  courts  interpret,  apply, 
and  enforce  the  constitution  of  the  United  States,  the  statutes  which 
have  been  passed  by  Congress,  and,  under  many  circumstances,  the 
constitutions  and  statutes  of  the  several  states.  They  do  not,  however, 
as  a  rule,  enforce  any  former  judicial  decisions  either  of  themselves  or 
of  the  state  courts.  There  is,  in  other  words,  no  federal  "common 
law.  "2  State  courts,  on  the  other  hand,  interpret,  apply,  and 
enforce  their  own  constitutions,  the  statutes  of  their  own  legislatures. 


1  So  vast,  in  fact,  is  the  field  of  comparative  law,  that  only  a  little  (to  speak 
relatively)  has  ever  been  done  to  develop  it. 

2  For  example,  in  the  ease  of  Wheaton  v.  Peters  (8  Peters  591,  1831),  the 
Court  declared:  "It  is  clear  there  can  be  no  common  law  of  the  United  States. 
The  Federal  Government  is  composed  of  states;  each  of  which  may  have  its  local 
usages,  customs,  and  common  law.  There  is  no  principle  which  pervades  the  Union 
and  has  the  authority  of  law;  that  is  not  embodied  in  the  constitution  or  laws 
of  the  Union.  The  common  law  could  be  made  a  part  of  our  federal  system,  only 
by  legislative  adoption."  Even  in  matters  of  procedure  there  is  no  federal  case 
law.  Thus  Dwyer,  "Law  and  Procedure  of  U.  S.  Courts,"  p.  320:  "In  law 
cases,  the  Federal  courts  follow  the  procedure  of  the  states;  but  in  equity,  the 
old  chancery  procedure  is  followed  except  where  Congress  has  modified  or  changed 
the  old  rules." 


OPHTHALMIC  JURISPRUDENCE 

and  the  various  judicial  decisions  which  have  been  rendered  in  former 
cases  by  themselves. 

Now,  exactly  what  courts  are  those  which  go  to  constitute  the  so- 
called  ''federal"  system,  and  what,  in  the  case  of  each,  is  its  juris- 
diction? The  federal  courts  consist  (excluding  certain  tribunals  whose 
existence  is  here  irrelevant  even  for  purposes  of  clearness,  such  as 
the  interstate  commerce  commission,  the  consular  courts,  etc.)  first, 
of  the  district  courts,^  then  of  the  circuit  court  of  appeals,  and,  finally, 
of  the  Supreme  Court  of  the  United  States. 

The  federal  district  courts  have  original  jurisdiction  only,  excepting 
appellate  jurisdiction  (i.  e.,  from  the  judgments  and  orders  of  United 
States  commissioners)  under  Chinese-exclusion  laws  and  over  the 
Yellowstone  National  Park.  Their  authority  extends  (as  well  as  to 
many  other  matters  here  irrelevant)  to  "all  cases  of  admiralty  and 
maritime  jurisdiction,"  to  "all  crimes  and  offenses  cognizable  under 
the  authority  of  the  United  States,"  to  "all  cases  arising  under  the 
postal  laws, ' '  and  to  ' '  all  suits  brought  by  any  person  to  recover  dam- 
ages for  any  injury  to  his  person  ...  or  property  on  account  of 
any  act  done  by  him,  under  any  law  of  the  United  States,  for  the  pro- 
tection or  collection  of  any  of  the  revenues  thereof."  In  all  of  these 
matters,  as  will  be  readily  observed,  the  assistance  of  the  medical  expert 
witness  is  frequently  required  for  the  untying  of  lego-medical  knots. 
Then  again,  the  federal  district  courts  have  jurisdiction  over  "all 
suits  of  a  civil  nature,  at  common  law  or  in  equity,  brought  by  the 
United  States,  or  any  other  officer  thereof  authorized  by  law  to  sue, 
or  between  citizens  of  the  same  State  claiming  lands  under  grants  from 
different  states;  or,  where  the  matter  in  controversy  exceeds,  exclusive 
of  interest  and  costs,  the  sum  or  value  of  three  thousand  dollars,  and 
(a)  arises  under  the  Constitution  or  laws  of  the  United  States,  or 
treaties  made,  or  which  shall  be  made,  under  their  authority,  or  (b) 
is  hetween  citizens  of  different  States,  or  (c)  is  between  citizens  of  a 
State  and  foreign  States,  citizens,  or  subjects."  The  specially  relevant 
passages  have  been  italicized  hj  the  present  writer,  and  it  is  easy  to 
perceive  from  these  passages  that,  in  suits  of  a  civil  nature  for  per- 
sonal injuries,  where  the  matter  in  controversy  exceeds,  exclusive  of 
interests  and  costs,  the  sum  or  value  of  three  thousand  dollars,  and 

1  It  may  not  be  amiss  to  suggest  that  there  are  several  federal  district  courts 
(no  district,  by  the  way,  transgressing  a  state  boundary)  in  almost  every  state. 
The  United  States  circuit  courts,  which  had  been  in  existence  for  more  than  a 
hundred  and  twenty  years,  were  abolished  by  "The  Judicial  Code"  of  Mar.  3, 
1911,  and  all  of  their  jurisdiction,  as  well  as  their  "pending  labors,"  was  trans- 
ferred to  the  federal  district  courts,  which,  in  addition,  kept  all  the  jurisdiction 
which  they  had  had  before  the  passage  of  that  Code. — See  226  U.  S.  420. 

3 


OPHTHALMIC  JURISPRUDENCE 

where  such  suit  is  between  citizens  of  different  States,  or  between 
citizens  of  a  State  and  foreign  States,  citizens  and  subjects,  a  phy- 
sician may  be  required  to  appear  either  in  his  quality  of  expert  witness 
or  in  that  of  defendant  in  a  malpractice  suit.  It  is  specially  to  be 
noted  that  a  physician  cannot  be  sued  for  malpractice  in  a  United 
States  court  (contrary,  of  course,  in  a  State  court)  unless  the  require- 
ment of  diverse  citizenship  between  his  plaintiff  and  himself  shall 
truly  exist  and  appear  in  the  pleadings,  and  also  unless  the  amount 
that  is  sued  for  shall,  exclusive  of  interest  and  costs,  exceed  the  sum 
or  value  of  three  thousand  dollars. 

The  circiiit  court  of  appeals  has  appellate  jurisdiction  only.  Phy- 
sicians, therefore,  have  no  occasion  to  appear  before  this  court. 

The  jurisdiction  of  the  Supreme  Court  of  the  United  States  is  thus 
expressed  by  the  federal  constitution :  ^  "  In  all  cases  affecting  ambassa- 
dors, other  public  ministers  and  consuls,  and  those  in  which  a  state 
shall  be  a  party,  the  Supreme  Court  shall  have  original  jurisdiction, 
and  in  all  other  cases  .  .  .  appellate  jurisdiction  .  .  ."  So 
far  as  this  court  possesses  original  jurisdiction,  it  may,  of  course,  re- 
quire the  attendance  of  expert  (as  well  as  of  ordinary)  witnesses. 

Thus  much  for  the  federal  system  of  courts;  now  for  the  systems, 
or  sets,  of  courts  which  exist  in  the  separate  states  and  which  operate 
by  virtue  of  the  authority  conferred  upon  them  by  the  various  state  con- 
stitutions. These  state  systems  differ  a  little  in  the  different  states, 
but  in  the  state  of  Illinois  for  example,  they  are,  briefly:  the  coroners' 
courts,  the  courts  of  justices  of  the  peace,  the  county  courts,  the 
circuit  courts,  the  appellate  courts,  the  city  courts  (simply  auxiliary 
circuit  courts)  and  the  Supreme  Court.- 

As  defendant  in  a  malpractice  suit,  the  physician  or  surgeon  (in- 
cluding, of  course,  the  ophthalmic  surgeon)  may  be  cited  to  appear  in 
the  circuit  court,  or,  indeed,  if  the  amount  sued  for  be  small  enough, 
in  the  county  court.^  If  either  of  the  parties  appeals  from  the  circuit 
court  (in  which  tribunal  the  suit  is  nearly  always  brought)  he  goes  to 
the  appellate,  and  later,  if  the  matter  is  taken  still  farther,  to  the 
Supreme  Court. 

1  Art.  Ill,  Sec.  2,  par.  2. 

2  In  New  York  and  Kentucky  the  ' '  Supreme ' '  Court  is  not  really  supreme. 
In  each  of  these  states,  the  highest  court  is  the  Court  of  Appeals,  while  the  so- 
called   ' '  Supreme ' '   Court  ranks   next  beneath. 

I  have  not  seen  fit  to  set  down  in  anything  resembling  a  comprehensive  manner 
the  various  jurisdictions  of  the  different  state  courts,  though  I  made  an  approach 
to  this  in  the  case  of  the  federal  system ;  the  reason  being  that  nearly  every  citizen 
has  a  fair  idea  of  the  jurisdictional  field  pertaining  to  the  courts  of  his  own  state ; 
though  a  hazy  one  indeed  with  respect  to  the  competence  of  the  courts  of  the 
United  States. 

3  Only,  however,  in  counties  in  which  separate  probate  courts  have  been  estab- 
lished. 


OPHTHALMIC  JURISPRUDENCE 

As  expert  witness,  the  physician  or  surgeon  (including,  of  course, 
the  ophthalmic  surgeon)  may  be  summoned  to  the  coroner's  court,  the 
court  of  a  justice  of  the  peace,  to  the  county  court,  to  the  circuit  court, 
and,  sometimes,  to  the  Supreme  Court,  i.  e.,  in  cases  where  this  tribunal 
possesses  original  jurisdiction.  He  never  appears,  however,  before  the 
Appellate  Court,  because  the  competency  of  this  court  is  limited  ex- 
clusively to  appeals.  In  the  coroner's  court  his  function  is  restricted 
to  assisting  the  coroner's  jury  in  arriving  at  a  verdict  as  to  the  probable 
cause  of  death. ^  In  the  justice 's  court,  his  office  is  frequently  to  decide 
as  to  whether  a  certain  injury  is  severe  or  only  slight,  or  whether  it  is 
likely  to  prove  fatal  or  not ;  for,  on  matters  such  as  these,  sometimes, 
in  criminal  cases,  depends  the  defendant's  right  to  bail.  In  this  court, 
also,  as  well  as  in  the  county  court,  the  medical  or  surgical  expert 
not  infrequently  gives  evidence  on  various  other  matters.  In  the 
circuit  court,  finally,  his  evidence  is  as  wide  as  the  broad  field  of 
medicine. 

It  is  to  the  circuit  court  (or  a  court  of  like  jurisdiction  called  per- 
haps by  another  name,  as,  e.  g.,  "District  Court"  in  Colorado)  well 
nigh  always,  that  the  ophthalmic  surgeon  is  called  as  an  expert  witness. 

An  interesting  matter  presents  itself  at  this  point:  What  is  the 
line  of  demarcation  separating  the  jurisdiction  of  the  federal  system  of 
courts,  taken  altogether,  on  the  one  hand,  from  that  of  the  various 
state  systems,  or  sets,  of  courts,  taken  altogether,  on  the  other?  Ter- 
ritorially, of  course,  the  jurisdiction  is  nearly  the  same  in  each  in- 
stance— state  courts,  to  be  sure,  being  wholly  devoid  of  authority  over 
the  high  seas,  over  the  District  of  Columbia,  etc. — but  what  about 
subject-matter?  Just  what  kinds  of  cases,  in  other  words,  are  triable 
in  the  federal  system  and  what  kinds  in  a  state  system  ?  Says  the  fed- 
eral constitution :  2  ' '  The  judicial  power  of  the  United  States  shall  ex- 
tend to  all  cases,  in  law  and  equity,  arising  under  this  constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  or  consuls;  to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion ;  to  controversies  to  which  the  United  States  shall  be  a  party ;  to 
controversies  between  two  or  more  states ;  between  a  state  and  citizens 
of  another  state,  between  citizens  of  different  states,  between  citizens  of 


1  The  office  of  coroner  was  abolished  in  Massachusetts  in  1877,  and  that  of 
"medical  examiner"  created  in  its  stead.  In  ease  the  medical  examiners  (who 
must  be  registered  physicians)  decide  that  the  death  in  question  was  due  to  violence, 
they  so  report  to  the  district  attorney  and  to  a  justice  of  the  district.  Similar 
changes  have  been  made  in  Michigan,  Rhode  Island  and  Connecticut.  See  "The 
Office  of  Coroner,"  by  E.  B.  H.  Gradwohl,  M.  D.,  St.  Louis,  in  the  Journal  of  the 
American  Medical  Association,  Mar.  12,  1910,  Vol.  LIV,  No.  11,  p.  842. 

2  Sec.  2,  Art.  III.     The  section  is  given  here  in  full,  though  partly  irrelevant 
otherwise  to  present  purposes,  for  the  sake  of  clearness. 

5 


OPHTHALMIC  JURISPRUDENCE 

the  same  state  claiming  lands  under  grants  of  different  states,  and  be- 
tween a  state,  or  the  citizens  thereof,  and  foreign  states,  citizens,  or 
subjects."  This  grant  of  jurisdiction  by  the  separate  states  to  the  fed- 
eral government  leaves  all  other  jurisdiction  whatsoever  in  the  hands 
of  the  separate  states.  The  practical  results,  however,  are  just  a  little 
different  from  that.  Says  Dwyer :  ^  "In  fact,  many  cases  within  the 
reach  of  the  judicial  power  of  the  federal  government  are  left  wholly 
to  the  state  courts ;  in  other  eases  the  courts  of  the  United  States  have 
exclusive  jurisdiction ;  while  in  others,  the  state  courts  are  permitted  to 
exercise  a  jurisdiction  concurrent  with  the  federal  courts." 

It  happens,  though  very  rarely,  that  actual  conflict  takes  place  be- 
tween the  jurisdiction  of  the  federal  and  that  of  the  state  courts.  What 
system,  in  such  circumstances,  has  the  actual  cognizance  of  the  particu- 
lar case  at  bar  ?  Here,  again,  the  federal  constitution  speaks :  2  "  This 
Constitution,  and  the  laws  of  the  United  States  which  shall  be  made  in 
pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the 
land ;  and  the  judges  in  every  State  shall  be  bound  thereby,  anything  in 
the  constitution  or  laws  of  any  State  to  the  contrary  notwithstanding. ' ' 
Thus,  therefore,  in  case  of  actual  conflict,  the  federal  law  is  supreme. 
But  there  must  he  actual  canflict.  AVithin  its  own  proper  classes  of 
cases,  the  law  of  any  state  is  as  absolutely  paramount  as  is  that  of  the 
United  States  within  its  proper  classes  of  cases.^ 


i"Law  and  Procedure  of  V.  S.  Courts,"  Ann  Arbor,  Mich.,  1901,  p.  63. 

2  Art.  VI,  par.  2. 

3  If  anyone  should  think  the  legal  preliminaries  to  this  article  unnecessarily 
long,  I  would  offer  as  my  excuse  the  fact  that  works  on  legal  medicine  contain, 
as  a  rule,  extremely  little  information  on  the  important  subject  of  courts  and 
fundamental  legal  principles  (these  matters  being  continually  assumed  to  be 
understood)  and  that,  as  a  consequence,  such  information  is  not,  as  a  rule,  very 
accessible  to  doctors,  while,  as  already  stated,  a  little  of  such  knowledge  is  abso- 
lutely essential  to  even  a  fair  comprehension  of  the  individual  statutes  and  rules 
with  regard  to  expert  witnesses,  economics,  malpractice,  etc.  Just  to  illustrate  in 
connection  with  the  matter  to  which  this  note  is  appended:  Not  long  since,  a 
physician  of  excellent  education  and  wide  reading,  having  been  threatened  with  a 
suit  for  malpractice  in  an  Illinois  court,  had  found  in  a  widely-circulated  work  on 
legal  medicine  a  case  which  had  been  decided  by  a  federal  court  and  which  seemed 
to  him  to  militate  against  his  interests.  He  declared  excitedly  that,  though  the 
law  in  Illinois  was  greatly  in  his  favor,  yet  that  the  federal  law  would,  being 
higher,  set  aside  the  law  of  Illinois,  and  thus  destroy  his  prospects  in  the  case. 
He  was  absolutely  amazed  to  learn  that  the  federal  decision  had  no  authority 
whatever  in  an  Illinois  court,  so  long  as  the  latter  tribunal  was  acting  within  its 
jurisdiction  and  so  long  as  it  possessed  on  the  point  in  question  decisions  of 
its  own.  Had  it  had  no  decision  of  its  own,  then  (as  will  appear  hereafter)  the 
federal  case  would  have  taken  on  persuasive  (not  binding)  authority,  the  same 
precisely  as  would  the  decision  of  any  court  of  last  resort  in  any  judicially  influ- 
ential state  with  regard  to  the  same  question.  Even  had  the  plaintiff  been  a 
citizen  of  another  state  than  tliat  in  which  the  doctor  in  question  had  his  citizen- 
ship, and  had  the  amount  involved  exceeded  the  "sum  or  value"  of  three  (at  that 
time,  two)    thousand  dollars,  and  had  the  plaintiff,  taking  advantage  of  these 

6 


OPHTHALMIC  JURISPRUDENCE 

So  much  for  American  courts,  and,  briefly,  the  power  which  each 
of  them  possesses.  There  remains,  however,  a  very  important  piece  of 
legal  machinery  to  be  considered  in  connection  with  the  most  of  these 
courts — namely,  the  jury.  In  the  coroner's  court,  a  jury — which  can 
never  be  dispensed  with — consists  of  six  men.  In  a  court  of  a  justice 
of  the  peace  there  is  generally  no  jury,  but  "either  party  may  have  the 
cause  tried  by  a  jury  if  he  shall  so  demand  before  the  trial  is  entered 
upon,  and  will  first  pay  the  fees  of  the  jurors."  ^  When,  in  a  justice's 
court,  a  trial  is  had  by  jury,  the  body  consists  (in  Illinois,  for  exam- 
ple) of  "six,  or  any  greater  number  not  exceeding  twelve,  as  either 
party  may  desire. "^  A  jury  (not  always  had)  in  the  county  court, 
consists  of  twelve  men,  unless  the  parties  elect  to  reduce  the  number  to 
six.  In  the  circuit  court  there  are  two  kinds  of  juries — the  grand  jury 
and  the  petit  jury.  The  grand  jury  is  a  sort  of  inquisitorial,  or  pro- 
visional, tribunal,  consisting  of  not  less  than  twelve  men  or  more  than 
twenty-three,  whose  duty  it  is,  in  private  session,  to  examine  into  vari- 
ous matters  of  a  criminal  nature,  either  on  their  own  motion  or  that  of 
a  public  prosecutor,  and,  in  case  they  deem  it  proper  so  to  do,  to  present 
to  the  circuit  court  a  formal,  written  accusation,  or  ' '  indictment. ' '  The 
petit  jury,  in  a  circuit  court,  consists  of  twelve  men.  Its  duty,  like  that 
of  a  jury  in  any  other  court,  is,  generally  speaking,  to  decide  upon  the 
facts,  while  the  function  of  the  judge  is,  speaking  generally  again,  to 
determine  points  of  law.  In  the  circuit  court,  a  trial  is  almost  always 
had  by  jury  (except  in  chancery  cases,  and  sometimes  even  then).  The 
decision  of  a  jury  is  called  a  "verdict."  The  conclusion  of  the  judge 
(which,  in  a  jury  trial,  is  of  course  based  upon  the  verdict)  is  known 
as  the  "judgment."  ^  In  any  petit  jury,  a  unanimous  vote  is  absolutely 
necessary  to  constitute  a  verdict,  both  in  civil  and  in  criminal  cases. 
State  constitutions  may  change  this  common  law  rule  as  to  unanimity 
and  have  done  so  in  some  states,  e.  g.,  Missouri  and  Oklahoma.  In 
a  grand  jury,  a  majority  vote  is  sufficient  if  it  amounts  to  twelve. 

Trial  by  jury  is  a  normal,  and  a  very  important,  part  of  that  great 


facts,  actually  brought  her  suit  in  a  federal  court,  then,  even  then,  the  action, 
although  in  a  federal  court,  would  not  have  been  subject  to  federal  common  law — 
for,  as  above  stated,  there  is  no  federal  common  law.  The  case  would  have  been 
decided,  so  far  as  possible,  under  the  statutes  of  the  state.  Outside  of  thoso 
statutes  (and  the  interpretations  of  them  made  by  the  courts  of  last  resort  within 
that  state)  neither  the  decisions  of  the  state  nor  any  federal  decisions  would  have 
had  the  slightest  binding  power  upon  the  court — which  would  simply  have  decided 
' '  in  accordance  with  the  principles  of  general  jurisprudence. ' '  One  can  read  and 
re-read  individual  laws  without  the  slightest  actual  understanding  of  them,  unless 
he  comprehends  in  advance  a  few  fundamental  matters,  such  as  those  which 
are  stated  in  this  Introduction. 

iHurd's  "Revised  Statutes"  of  Illinois,  1909,  Chap.  79,  Sec.  48. 

2  Loc.  cit. 

3  For  a  detailed  and  scholarly  study  of  judgments  in  general,  see  Kood  's 
"Attachments,  Garnishments,  Judgments  and  Executions,"  (8  vo.,  Ann  Arbor, 
1901). 

7 


OPHTHALMIC  JURISPRUDENCE 

division  of  the  legal  systems  of  civilized  countries  which  is  known  as 
the  Common  Law — i,  e.,  the  legal  systems  of  England,  and  the  various 
lands — Australia,  Canada,  the  United  States,  etc. — that  have  taken 
their  basic  legal  views  from  that  country.  It  is  not  normally  a  con- 
stituent of  the  other  grand  division,  or  class,  of  legal  systems — i.  e., 
those  derived  from  the  civil  (ancient  Roman)  law,  and  to  which  belong 
the  legal  systems  of  practically  all  the  countries  of  continental  Eu- 
rope.^  However,  as  we  shall  later  observe,  the  jury  has,  to  some 
extent,  owing  to  the  influence  of  the  English  legal  system  on  the 
Continental  system,  been  introduced  into  the  judicial  machinery  of 
Germany,  France,  Italy,  and  even  of  some  other  continental  lands. 

The  importance  of  this  little  body  of  often  illiterate  men,  for  the 
parties,  for  the  judges,  and  for  expert  witnesses,  can  hardly  be  exag- 
gerated. In  common  law  countries,  for  example,  in  which  the  jury  trial 
is  so  conspicuous  a  feature,  it  has  given  rise  to  an  extensive  and  com- 
plicated branch  of  the  law,  which  is  known  as  the  Law  of  Evidence — a 
body  of  rules  relating  to  what  may,  and  what  may  not,  be  presented  to 
the  jury.  This  great  branch  of  the  law,  it  would  seem,  does  not  possess 
an  independent  existence  (or  at  all  events  any  worth  mentioning)  in 
the  civil  law  countries.  On  the  jury  it  is,  almost  always,  that  the  medical 
expert  ^witness  is  required  to  shed  his  scientific  light.  To  the  jury  it  is, 
moreover,  that,  when  a  doctor  appears  as  defendant  in  a  suit  for 
medical  or  surgical  malpractice,  his  case  is  practically  handed  over  for 
its  entire  decision.  Indeed  in  Illinois,  and,  I  believe,  in  certain  other  of 
the  American  States,  the  jury  is  made,  for  weal  or  for  woe,  sole  arbiter 
not  only  of  the  facts  but  of  the  law.^ 

Great,  therefore,  is  the  jury  in  the  various  Common  Law  systems. 
Of  little  importance,  however,  is  that  body  of  men  in  the  systems  which 
have  descended  from  the  jurisprudence  of  ancient  Rome.^  The  duties 
of  a  medical  expert  witness,  accordingly,  are  somewhat  different  in 
common  law,  from  what  they  are  in  civil  law,  countries.*    In  the  for- 


1  One  of  the  most  remarkable  facts  of  human  history  is  this  strange,  thia 
well-nigh  inexplicable  vitality  of  the  ancient  Roman  law.  That  a  system  of 
jurisprudence  developed  in  a  state  of  society  in  every  way  so  different  from  that 
of  modern  Europe,  should  persist  through  all  the  centuries  and  be  found  still 
applicable,  is  an  almost  miraculous  occurrence.  But  the  Romans  seem  to  have 
constructed  their  jurisprudence  as  they  built  their  roads — to  last  forever. 

2  Under  instructions  from  the  judge,  of  course. 

3  Juries  were  had,  in  ancient  times,  undoubtedly,  both  in  Rome  and  in  Greece. 
But  these  (the  so-called  judices  and  the  dicastce)  were  not  the  sources  of  the 
modern  petty  jury,  which,  as  declared  by  Jenks  {A  Short  History  of  English 
Law,  p.  333)  "was  a  mere  after-thought,  designed  to  fill  the  gap  left  by  the 
abolition  of  the  ordeal."     This  "after-thought"  occurred  about  A.  D.  1300. 

4  A  fact  too  often  lost  sight  of  by  those  who  propose  reforms  in  the  medical 
expert  systems  of  the  United  States — reforms  suggested,  in  very  many  instances, 
by  the  successful  operation  of  medical  expert  corps  to  be  found,  here  and  there, 
among  civil  law  countries  (France  and  Germany,  for  instance,  not  Italy). 


OPHTHALMIC  JURISPRUDENCE 

mer,  for  instance,  the  functionary  in  question  addresses  the  jury,  in  the 
latter,  the  judge.  In  a  common  law  land,  he  directs  his  remarks  (gen- 
erally speaking)  to  a  body  of  mentally  untrained  men,  incapable  of 
complex  reasoning,  or,  in  other  words,  of  winnowing  testimony,  for 
themselves,  and  hence  he  is  bound  to  submit  to  a  multitude  of  rules 
respecting  what  is,  and  what  is  not,  "proper  to  go  before  the  jury." 
In  a  civil  law  land,  on  the  other  hand,  he  addresses  the  judge,  or,  it  may 
be,  a  benchful  of  judges,  who  are  nearly  always  highly  trained 
logicians,  and,  for  that  reason,  he  is  wholly  unhampered  by  our  truly 
astounding  "rules  of  evidence." 

Now,  what  kinds  of  law  do  American  courts — acting,  to  be  sure, 
very  often  in  conjunction  with  their  juries — interpret,  apply,  and  en- 
force? and,  moreover,  what  are  the  rules,  or  principles,  according  to 
which  are  made  these  interpretations,  these  applications,  these  enforce- 
ments ? 

We  have  already  seen  that,  in  the  federal  courts,  the  laws  applied 
are,  chiefly :  the  federal  constitution,  the  acts  of  Congress,  and  (under 
many  circumstances)  the  constitutions  and  statutes  of  the  several  states, 
as  well  as  "the  general  principles  of  jurisprudence;"  that,  in  a  state 
court-system,  they  are :  the  constitution  of  the  particular  state  in 
question,  the  statutes  passed  by  the  legislature  of  that  state,  and,  finally, 
the  decisions  of  these  same  courts  in  former  cases.^  Now,  in  each 
instance —  either  in  the  federal  system  or  in  any  given  state  system — 
the  question,  of  course,  arises:  which  of  these  kinds  of  law  is  of  the 
higher  force  and  effect  ?  In  other  words,  when  a  conflict  arises  betwixt 
constitution,  statutes,  and  case-law  (otherwise  known  as  the  common 
law,  the  judge-made  law,  and  the  unwritten  2  law)  which  kind  of  law 
is  held  to  supersede  the  other  kinds?  The  invariable  rule  is  that  the 
common,  or  case,  law  is  the  lowest  form  of  law,  and  must  give  way, 
in  case  of  conflict,  to  statutory  enactment,  and  that  both  statutory 
enactment  and  case-law  are  controlled  by  the  constitution.  Of  course, 
multitudes  of  decisions  accumulate,  in  the  course  of  the  application  of 

1  It  should,  of  course,  be  understood  that,  in  any  jurisdiction,  it  is  only  the 
decisions  of  "courts  of  last  resort"  which  constitute  law  for  subsequent  cases. 
The  doctrine  that  the  decisions  of  courts  of  last  resort  take  on  the  force  of  law 
for  subsequent  cases  in  courts  of  any  grade,  is  known  as  the  doctrine  of  stare 
decisis  (to  stand,  or  abide,  by  decided  cases).  This  doctrine  prevails  in  England 
and  in  all  the  various  countries  which  have  derived  their  legal  system  from  that 
land — Canada,  the  IT.  S.,  etc.  In  civil  law  countries  (i  e.,  countries  whose  legal 
principles  were,  as  already  stated,  adopted  chiefly  from  the  ancient  Eomans — as 
France,  Germany,  Italy)  the  doctrine  does  not  prevail.  A  judge  may,  if  he  choose, 
in  those  countries,  apply  the  law  in  one  way  today  and  in  another  way  tomorrow. 
This,  at  least,  is  the  theory.  As  a  matter  of  fact,  however,  a  judge  in  a  civil  law 
country  is  very  much  guided  by  former  decisions. 

-  Because,  originally,  in  ancient  times  in  England,  the  decisions  of  courts  wero 
neither  printed  nor  written,  but  merely  preserved  in  men's  memories. 

9 


OPHTHALMIC  JURISPRUDENCE 

statutes  and  of  constitution,  and  these  decisions  become,  as  it  were,  a 
part — and  a  very  important  one — of  the  constitution  or  of  the  par- 
ticular statute  which  is  under  consideration.  They,  too,  are  a  part  of 
the  law. 

Again,  certain  rules  exist  for  the  application  of  case-law,  or  com- 
mon law,  at  least  some  of  which  must  be  understood  before  the  ''legal 
relations"  of  anything  whatever  can  be  even  slightly  comprehended. 
The  most  important  of  these  rules  are : 

1.  A  case  of  "first  impression" — i.  e.,  a  pioneer  case  or  a  case 
which,  for  the  first  time  in  a  court  of  last  resort  in  the  given  jurisdic- 
tion brings  up  directly  for  decision  the  matter  in  question,  does  not 
possess  so  binding  a  force  as  law  as  do  subsequent  eases  holding  to  the 
same  effect;  and,  in  general, 

2.  An  old  case,  if  others  things  are  equal,  does  not  possess  so  high 
an  authority  as  one  more  recent. 

3.  Whatever  is  said  in  a  case  that  is  not  strictly  necessary  to  the 
decision  of  that  case,  does  not  take  on  the  force  of  law  for  subsequent 
cases,  but  is  only  obiter  dicta — i.  e.,  "sayings  by  the  way." 

4.  The  decision  of  a  court  of  last  resort  in  any  other  state  than 
that  in  which  a  case  arises,  has  no  compulsory  force  as  law,  but  ' '  per- 
suasive authority"  only — an  authority  which,  moreover,  is  greater  or 
less  according  (among  other  matters)  to  the  eminence  of  the  court 
of  last  resort  which  rendered  the  decision  applied  to.  Thus,  the  de- 
cisions of  the  Supreme  Court,  still  more  the  Court  of  Appeals,  of  the 
State  of  New  York  have  always  been  possessed  of  much  "persuasive 
authority"  in  the  courts  of  other  states.  The  same  is  true  of  the 
Supreme  Court  of  New  Hampshire,  and  of  some  other  states. 

5.  A  scanty,  ill-reasoned  opinion  is  of  less  force  than  a  full  and 
cogent  one. 

Two  great  divisions  of  the  law  of  any  country,  which  are  abso- 
lutely necessary  to  be  understood,  may  here  most  conveniently  be  dis- 
cussed, though  with  special  reference  to  American  law — the  criminal 
law  and  the  civil  ^  law. 

The  criminal  law  is  that  division  of  the  law  which  relates  to  crimes, 
and  a  crime  is  any  act  or  omission  regarded  by  the  legislative  power 
as  being  so  injurious  to  the  general  public  that  the  government  itself 
will  punish  the  person  or  persons  who  are  shown  to  be  responsible 
for  such  act  or  omission.     Any  proceeding  which  has  for  its  object 


1  The  term,  "civil  law,"  it  is  well  enough  to  notice,  is  employed  here, 
as  elsewhere  in  legal  writings,  in  two  widely  differing  senses.  In  the  first 
acceptation  it  denotes  the  various  legal  systems  descended  from  the  corpus  juris 
civilis  of  ancient  Eome — as  those  of  Prance,  Germany  and  Italy.  In  the  other 
sense,  it  signifies  the  non-criminal  portion  of  the  law  of  any  country. 

10 


OPHTHALMIC  JURISPRUDENCE 

the  infliction  of  this  punishment  is  called  a  criminal  actimi,  or,  more 
briefly,  a  prosecution.  Crimes  are  of  three  grades,  misdemeanors,  fel- 
onies, and  capital  crimes.  A  misdemeanor  is  any  crime  inferior  to  a  fel- 
ony. A  felony  is  a  crime  punishable  by  imprisonment  in  the  peniten- 
tiary.   A  capital  offense  is  any  offense  punishable  by  death.^ 

The  civil  law  is  simply  the  non-criminal  portion  of  the  law. 

In  criminal  actions,  or  prosecutions,  physicians  are  not  infrequently 
summoned  as  expert  witnesses,  to  assist  in  the  unravelling  of  various 
medical  or  surgical  tangles,  especially  in  connection  with  the  offenses 
specifically  known  as  murder,  rape,  mayhem  (mutilation),  etc.  In 
actions  of  this  sort,  however,  the  ophthalmic  surgeon  is  naturally 
enough  very  seldom  asked  to  lend  to  the  jury  the  assistance  of  his 
knowledge  and  skill.  It  is  the  general  practitioner  that  is  almost 
always  appealed  to.  In  civil  cases,  however,  especially  in  that  variety 
known  as  personal  injury  suits  (including,  of  course,  the  sub-variety 
known  as  malpractice  actions)  the  ophthalmic  surgeon  is  frequently 
subpoenaed  to  explain  to  the  jury  the  nature  of  various  injuries  to  the 
eye,  or  diseases  of  that  organ,  or  of  the  probable  extent  and  economic 
value  of  the  disability  produced  by  such  diseases  and  injuries. 

In  connection  with  this  matter  of  personal  injury  actions,  we  have 
to  remark  that  these  are  brought  invariably  for  the  purpose  of  securing 
what  is  technically  known  as  "damages" — i.  e.,  monetary  compensation 
for  a  damage — and  that  damages  are  of  three  very  simple  classes,  or 
varieties :  nominal  damages,  compensatory  or  substantial  damages,  and 
punitive,  vindictive,  or  exemplary  damages. 

Nominal  damages  are  awarded  when  there  is  a  mere  technical 
violation  of  a  right,  but  no  actual  damage.  The  amount  of  nominal 
damages  awarded  in  any  given  case  is  often  very  small — six  cents, 
sometimes  one  cent.  Such  a  judgment,  however,  throws,  as  a  rule,  the 
costs  of  the  suit  upon  the  defendant.  On  the  other  hand,  in  certain 
jurisdictions  a  judgment,  to  "carry  costs,"  must  be  for  "substantial" 
damages. 

Substantial  or  compensatory  damages  are  allowed  when  there  is 
not  merely  a  technical  violation  of  a  right,  but  also  an  actual  damage, 
or  injury.  In  the  estimate  of  such  damages,  matters  such  as  the  fol- 
lowing may  be  taken  into  consideration:  (1)  Necessary  and  reasonable 


1  Various  definitions  of  some  of  these  terms  prevail  in  various  jurisdictions, 
the  consequence  of  which  is  confusion.  The  chief  differences  occur  with  regard 
to  the  word  misdemeanor.  The  definitions  above  given  are  the  simplest,  and, 
possibly,  as  correct  as  any  that  could  be  stated  for  a  general  understanding.  They 
are,  moreover,  those  recognized  by  the  present-day  law  of  England.  Thus,  Russell, 
"Law  of  Crimes,"  1910,  p.  10:  "The  word  misdemeanor  is  applied  to  all  offenses 
(whether  at  common  law  or  by  statute)  which  are  below  the  degree  of  felony, 
whether  they  are  punishable  on  indictment  or  on  summary  conviction." 

11 


OPHTHALMIC  JURISPRUDENCE 

expenses,  as  hospital  fees,  nurses'  and  doctors'  bills;  (2)  loss  of  time; 
(3)  pain  and  suffering;  (4)  disfigurement;  (5)  reduction  of  the  earn- 
ing capacity.  It  not  infrequently  happens  that  this  last-named  item 
constitutes  by  far  the  most  important  feature  of  the  bill;  hence  the  sig- 
nificance which  attaches  to  the  subject  of  "Visual  Economics"  ^ — i,  e., 
the  methods  whereby  can  be  correctly  estimated  the  loss  of  earning 
power  directly  2  consequent  on  the  various  injuries  and  diseases  of 
the  eye. 

Punitive,  exemplary,  or  vindictive  damages  may  be  recovered — 
in  certain  jurisdictions  only,  and  these  not  many — when  the  damage 
was  inflicted  under  aggravating  circumstances.  This  kind  of  damages 
exceeds  the  allowance  which  could  be  made  for  mere  compensation, 
adding,  as  it  does,  thereto,  a  larger  or  smaller  sum  by  way  of  punish- 
ment, or  vengeance,  in  order,  as  it  were,  to  make  an  example  of  the 
defendant. 

These  various  sorts  of  damages  can  thus  be  briefly  illustrated:  A 
commits  an  assault  and  battery  on  B,  but  without  inflicting  on  him 
any  material  damage.  B  sues  A,  and  is  simply  awarded  a  cent  in  rec- 
ognition of  his  right  to  freedom  from  assault  and  battery.  In  some 
jurisdictions,  B,  under  these  circumstances,  would  have  to  pay  the 
costs  of  the  suit,  as  well  as  the  one-cent  damages ;  while,  in  others,  the, 
costs  would  have  to  be  borne  by  A. 

Now,  suppose  that  A  has  inflicted  on  B  a  very  material  injury; 
has,  for  example,  knocked  out  one  of  his  eyes.  B  can  recover  sub- 
stantial damages,  the  amount  to  be  determined  by  adding  together  the 
various  estimated  values  of  such  items  as  pain  and  suffering,  doctors' 
bills,  loss  of  earning  capacity,  etc.,  as  heretofore  stated. 

But,  once  more,  suppose  that  A  put  out  the  eye  of  B  under  espe- 
cially exasperating  circumstances;  for  instance,  with  the  declaration 
that  he  destroyed  the  sight  of  the  eye  merely  in  order  to  render  B  in- 
capable of  earning  a  living,  or  of  marrying  a  certain  person,  or  "simply 
to  see  what  the  inside  of  it  looked  like."   Here,  in  a  few  (a  very  few) 


1  To  be  treated  some  distance  infra. 

2  It  may  not  be  amiss  to  state  explicitly  that  any  damage,  in  order  to  consti- 
tute a  ground  for  a  suit  for  damages,  must  be  a  direct,  not  an  indirect,  result  of 
the  wrongful  act,  or,  as  it  is  often  exjjressed,  the  result  of  a  proximate,  not  a 
remote,  cause.  To  express  the  matter  still  differently,  the  "damage  must  be  the 
legitimate  sequence  of  the  thing  amiss. ' '  An  excellent  example  of  this  principle  is 
furnished  by  the  leading  case  of  Scott  v.  Shepherd,  in  which  it  appeared  that  the 
defendant  had  thrown  into  a  crowd  a  lighted  squib.  One  after  another  of  those 
in  the  crowd  struck  at  the  squib  to  keep  it  from  impinging  on  their  faces,  until, 
at  last,  "it  had  burnt  out  the  plaintiff's  eye."  The  defendant  pleaded  that  the 
damage  was  indirect,  insomuch  as  it  was  really  due  to  "the  subsequent  acts  of 
others."  But  the  court  held  that  the  acts  of  the  others  were  "instinctive  and 
innocent,"  and  such  as  should  have  been  foreseen  by  ordinary  forecast;  and  that 
the  act  of  the  plaintiff,  therefore,  was  the  direct  cause  of  the  damage. 

12 


OPHTHALMIC  JURISPRUDENCE 

jurisdictions,  the  plaintiff  would  be  entitled  to  damages  in  excess  of 
those  which  could  be  considered  as  legal  compensation.^ 

Excessive  damages.  This  is  still  another  term  which  we  need  to 
understand.  The  amount  of  damages  which  a  jury  has  a  right  to  as- 
sess is  not  unlimited,  and,  in  case  it  assesses,  or  estimates,  the  amount 
at  an  unreasonably  high  figure,  the  damages  are  said  to  be  ' '  excessive. ' ' 
There  is  indeed  no  fixed  rule  (excepting  only  after  "death  produced 
by  wrongful  act, ' '  when  the  amount  is  usually  fixed  by  statute  either  at 
$5,000  or  $10,000)  ;  but,  in  case  the  trial  judge  deems  the  amount  ex- 
cessive, he  has  power  to  reduce  the  amount  or  to  set  the  verdict  aside. 
Higher  courts,  too,  may  declare  the  damages  ' '  excessive. ' '  ^ 

Thus  much  for  the  courts  of  the  United  States,  including  the 
juries  thereof,  as  well  as  also  certain  important  legal  principles  and 
definitions.  Let  us  now  consider  these  same  matters,  though  much 
more  briefly,  with  regard  to  other  lands.    And  first,  as  to  the 

Basic  Legal  Principles  and  Chief  Courts  of  England.^ 

In  England  the  fundamental  legal  principles  are  much  the  same  as 
in  America.  Indeed,  as  suggested  already,  these  principles  were 
really  adopted  by  the  United  States  in  an  early  day  from  the  mother 
nation.  In  England,  for  instance,  the  doctrine  of  stare  decisis  or  of 
case-law,  prevails  exactly  as  it  does  with  us,  and  case-law  there  is 
subject  to  the  same  identical  rules  of  interpretation  as  it  is  in  America. 
The  jury  system,  too,  in  that  country,  plays  a  highly  important  part, 
exactly  as  it  does  in  this  country.  The  English  court-system,  however, 
is  very  different  from  ours.  For  one  thing,  there  is  lacking,  in  Eng- 
land, the  two-fold  idea — federal  and  state — which  makes  the  law  of 
America  so  difficult.  There  is  only  one  system,  or  series,  of  courts  in 
England.  Then,  again,  in  England  there  is  no  written  constitution; 
and,  furthermore,  questions  of  constitutionality  are  decided  in  that 
country  by  the  legislative  body — Parliament — at  the  time  when  a  given 
law  is  enacted.  The  courts  have  nothing  whatever  to  do  with  such 
questions.    When,  in  England,  a  law  is  once  passed,  it  is  law. 


1  A  would,  of  course,  be  liable  to  a  criminal  prosecution  for  mayhem  (mutila- 
tion) in  any  jurisdiction,  under  the  circumstances  mentioned.  We  are  speaking 
here  only  of  the  civil  action  which  may  always  be  instituted  by  the  plaintiff,  or 
his  representatives  (guardian,  executor,  or  administrator)  on  the  same  set  of  facts 
as  the  criminal  action. 

2  Thus,  in  Yurkonis  v.  Del.  L.  &  W.  E.  Co.  (1914)  213  Fed.  537,  U.  S.  District 
Court,  E.  D.  N.  Y. :  "A  verdict  for  the  loss  of  both  eyes  by  a  miner  50  years 
of  age,  whose  maximum  annual  earnings  were  about  $900,  will  be  held  excessive 
unless  he  consents  to  remit  all  in  excess  of  $36,000. ' '  See  also  a  number  of  cases 
in  * '  Negligence  and  Compensation  Cases,  Ann., ' '  Vol.  VI,  p.  210. 

3  The  Welsh  and  the  Irish  courts  may,  to  all  intents  and  purposes,  be  regarded 
as  just  like  those  of  England.     Not  so,  however,  may  the  courts  of  Scotland. 

13 


OPHTHALMIC  JURISPRUDENCE 

The  system  of  English  courts,  much  simplified^  to  be  sure,  for 
general  presentation,  is  as  follows : 

Coroners'  Courts. — The  jurisdiction  is  a  little  wider  than  with  us. 
It  extends  to  deaths  and  fires  (where  questions  arise  as  to  cause)  and 
treasure  trove. 

Courts  of  the  Justices  of  the  Peace. — The  jurisdiction,  as  with  us, 
extends  only  to  certain  subordinate  matters. 

County  Courts. — Jurisdiction  extends  to  subject-matter  whereof 
the  value  involved  does  not  exceed  £100. 

Courts  of  8essio7i. — Criminal  cases  only. 

Court  of  Criminal  Appeal. — Criminal  appeals  only. 

The  High  Court  of  Justice. — Consists  of  the  Chancery  Division, 
the  King's  Bench  Division,  and  the  Probate,  Divorce,  and  Admiralty 
Division, 

Court  of  Appeal. — Hears  all  appeals  from  the  High  Court  of  Jus- 
tice. 

The  High  Court  of  Justice  and  the  Court  of  Appeal  are,  together, 
called  "The  Supreme  Court  of  Judicature." 

The  House  of  Lords. — Does  not  consist  of  all  the  members  of  the 
House  of  Lords,  but  of  "The  Law  Lords"  only.  Hears  appeals  from 
the  Court  of  Appeal,  and  has  original  jurisdiction  in  certain  classes  of 
cases,  not  necessary  here  to  be  specified. 

There  is  only  one  Supreme  Court  of  Judicature.  England,  how- 
ever, is  divided  into  seven  Supreme  Court  Circuits,  and  the  various 
judges  of  the  Court  apportion  the  work  among  themselves  according 
to  certain  rules,  and  also  in  obedience  to  the  ever-changing  demands 
made  upon  this  court  by  the  various  circuits. 

Cases  relating  to  the  unprofessional  conduct  of  physicians  fall  en- 
tirely within  the  jurisdiction  of  the  General  Medical  Council — an  ex- 
clusively medical  body  which  removes  the  offender's  name  from  the 
Register,  (i.  e.,  disqualifies  him  from  practice)  in  case  the  offense  ia 
proved.    The  decision  of  this  tribunal  is  absolutely  final. 

Suits  for  medical  or  surgical  malpractice  are  brought  either  in  the 
King's  Bench  or  the  County  Court,  according  to  the  amount  involved. 
An  appeal  lies,  first,  to  the  Court  of  Appeal;  then  to  the  House  of 
Lords. 

Medical  expert  testimony  may  be  required  in  all  these  courts,  ex- 
cepting only  the  Court  of  Appeal,  which,  possessing  appellate  jurisdic- 
tion only,  does  not  take  testimony,  either  common  or  expert. 


4  Neither  in  the  case  of  the  English  court-system  nor  in  that  of  any  other 
court-system,  is  the  attempt  here  made  to  furnish  a  scientific  exposition  of  the 
jurisdiction  of  the  various  tribunals  named;  the  endeavor  is  merely  to  convey  a 
somewhat  general  idea  of  the  court-organization  of  the  various  nations  in  question. 

14 


OPHTHALMIC  JURISPRUDENCE 

Basic  Legal  Principles  and  Chief  Courts  of  Fra/nce. 

In  France  the  doctrine  of  stare  decisis  does  not  prevail.  A  judge 
may,  if  he  choose,  decide  in  one  way  to-day  and  in  another  way  to-mor- 
row, on  exactly  similar  states  of  fact.  Neither  do  ministerial  edicts 
have  the  force  of  law  in  France,  contrary  to  the  generally  received 
opinion  on  that  point  in  this  country.  They  are  supposed  only  to  inter- 
pret the  law,  though  instances  of  encroachment  have  undoubtedly  oc- 
curred. Constitution,  codes  and  statutes — these  are  the  three  constit- 
uents of  French  law. 

In  France,  furthermore,  the  jury  system  is  conspicuous  by  its 
almost  absence.  In  fact,  no  jury  is  ever  employed  in  France,  except  in 
criminal  eases,  and  then  only  in  the  Assize  Courts,  tribunals  which  deal, 
generally  speaking,  only  with  the  very  highest  classes  of  crimes.^  A 
jury  in  civil  cases  is  unheard  of.  There  are,  in  France,  few  technical 
"Rules  of  Evidence,"  no  perplexing  problems  with  respect  to  rel- 
evancy, materiality,  or  competency.  The  mile-long  ''hypothetical  ques- 
tion" never  disturbs  the  intellectual  serenity  of  the  medical  expert, 
who  merely  hands  in  his  report,  or  discusses,  in  a  gentlemanly  fashion, 
various  matters,  relevant  to  the  issue  of  course,  with  a  learned  and 
urbane  judge.^ 

The  defendant,  moreover,  in  a  suit  for  medical  malpractice  (which 
kind  of  suit,  by  the  way,  for  reasons  to  appear  hereafter,  is  extremely 
rare  in  France )  ^  does  not  direct  a  mutilated  defense  to  a  body  of  men 
who  may,  or  may  not,  comprehend  the  nature  of  the  scientific  questions 
involved.  On  the  contrary,  he  addresses  a  connected  exculpation  to  a 
judge  (or,  it  may  be,  to  a  benchful  of  judges)  who  are  ably  assisted  by 
official  physicians,  selected  either  by  the  parties  or  by  the  court  but 
from  a  list  drawn  up  at  stated  intervals  by  the  Court  of  Appeal  in  the 
particular  judicial  district  in  which  the  case  is  heard.  Surely  it  would 
not  be  injudicial  to  say  that  they  do  "order"  these  things  "better  in 
France. ' ' 

The  court-system  of  France  is  as  follows: 


1  Even  the  Assize  Court  jury  could  be  adopted  only  during  the  Eevolution, 
in  1790. 

2  Neither  is  there  in  Trance  a  Grand  Jury.  The  functions  of  this  exclusively 
Common  Law  body  are  performed  in  France  by  a  special  ofl&eer  known  as  the 
"Juge  d 'Instruction, "  a  kind  of  Grand  Inquisitor  who  is  entitled  to  examine 
"not  only  the  witnesses,  but  the  prisoner  himself  in  absolute  privacy."  True, 
there  is  a  " Chamdre  des  mises  en  accusation,"  which  works  in  connection  with 
the  Court  of  Assizes,  and  which  is  something  like  our  Grand  Jury.  Nevertheless, 
its  members  are  not  laymen,  but  judges  from  the  Courts  of  Appeal.  The 
resemblance,  therefore,  to  our  Grand  Jury  is  very  superficial. 

3  Everywhere,  indeed,  in  foreign  countries,  malpractice  suits  are  far  less  com- 
mon than  among  us.  So  far  as  I  am  able  to  judge,  there  have  been  more  mal- 
practice cases  in  the  last  hundred  years  in  the  United  States  alone  than  in  all 
continental  Europe. 

15 


OPHTHALMIC  JURISPRUDENCE 

Civil  Courts. 

a.  Courts  of  Exceptional  Jurisdiction  (those  whose  jurisdiction  is 
delimited  by  statute). 

1.  Courts  of  the  Justices  of  the  Peace. — Jurisdiction  up  to  600 
francs. 

2.  Commercial  Courts. — Certain  commercial  cases  only. 

b.  Courts  of  Ordinary  Jurisdiction. 

1.  The  Civil  Tribunal  of  First  Instance. — There  is  one  of  these 
for  each  arrondissement,  France,  as  is  well  known,  being  divided  into 
a  number  of  ' '  departements, ' '  or  states,  each  of  these  being  subdivided 
into  three  or  four  ' '  arrondissements. ' ' 

This  tribunal  is  of  great  importance  in  connection  with  the  matter 
of  medical  expert  witnesses,  for  to  it  belongs  the  power,  and  on  it  de- 
volves the  duty,  to  construct  each  year  a  list  of  qualified  physicians 
from  which  the  official  corps  of  "medical  experts  before  the  courts" 
may  later  be  chosen.     (See  Court  of  Appeal,  infra.) 

2.  The  Courts  of  Appeal. — There  is  one  of  these  for  each  of  the 
twenty-six  appellate  districts,  each  appellate  district  comprising  a 
number  of  "departements." 

These  courts  are  of  great  importance  in  connection  with  the  matter 
of  ' '  medical  experts  before  the  courts, ' '  for  this  court  is  the  body  which 
possesses  the  power  to  appoint,  and  on  which  devolves  the  duty  to  ap- 
point, from  a  list  proposed,  as  before  stated,  by  the  Civil  Tribunal  of 
First  Instance,  the  corps  of  medical  experts. 

3.  The  Court  of  Cassation. — One  for  all  France.  Sits  in  Paris. 
A  court  of  error  only.  It  never  retries  the  facts,  a  retrial,  if  ordered, 
being  referred  back  to  a  Court  of  Appeal  other  than  that  which  heard 
the  case  before. 

Criminal  Courts.^ 

1.  Tribunal  of  Simple  Police. — Petit  offenses  only.  Merely  the  crim- 
inal side  of  the  Justice  of  the  Peace's  Court. 

2.  Correctional  Courts. — All  offenses  involving  a  penalty  exceed- 
ing five  days'  imprisonment  and  fifteen  francs  fine,  except  such  as  are 
reserved  for  the  courts  of  the  third  degree,  which  are  the  Assize  Courts. 

3.  The  Assize  Courts. — The  highest  classes  of  crimes  only.  The 
only  court  in  France  in  which  there  is  a  jury. 

Medical  expert  testimony  is  heard  in  every  court  in  France. 

A  suit  for  malpractice  against  a  physician  would  be  begun  in  the 


1  Nothing  at  all  like  our  Coroners '  Courts  exists  in  France,  Germany,  or  Italy. 

16 


OPHTHALMIO  JURISPRUDENCE 

Civil  Court  of  First  Instance,  and  the  Court  of  Appeal  of  the  same 
district  would  have  appellate  jurisdiction. 

Basic  Legal  Principles  and  Chief  Courts  of  Germany. 

In  Germany,  as  in  France,  the  doctrine  of  stare  decisis  (case-law) 
does  not,  theoretically  at  least,  prevail.  In  actual  practice,  however, 
the  decision  of  a  court  of  last  resort  in  the  German  Empire  is  given 
great  weight  in  subsequent  similar  eases,  and  is  almost  always  adhered 
to.  Says  Schuster :  i  "  Theoretically  the  rule  of  English  law,  according 
to  which  the  judgment  of  any  Court  establishing  any  rule  of  law  is  con- 
clusive for  all  subordinate  and  co-ordinate  Courts,  is  not  accepted  in 
Germany,  and  any  young  'assessor'  fresh  from  his  final  examination 
may  overrule  the  judgment  of  the  Imperial  Supreme  Court,  but  in 
practice  the  ruling  that  any  Superior  Court  is  of  the  greatest  weight 
and  authority.  .  .  ."  The  authority  of  legal  text-books,  too,  in 
German  courts,  is  probably  higher  than  in  any  other  country.  Con- 
stitution, codes  and  statutes,  however,  are,  in  Germany,  as  in  all  other 
Civil  Law  countries,  of  absolutely  binding  power. 

The  system  of  courts  in  Germany  is  somewhat  peculiar.  It  is  not 
so  simple,  quite,  as  is  the  system  of  France  (which,  in  fact,  is  almost 
like  the  simple  series  of  one  of  our  single  states)  nor,  on  the  other 
hand,  is  it  quite  so  complicated  as  the  American  state-and-federal  plan. 
It  holds,  in  fact,  a  position  midway  between  these  two  systems — the 
extremely  simple  system  of  France  and  the  extremel}^  complex  system 
of  America.  The  highest  court  in  Germany,  to  be  explicit,  is  a  federal 
court  (the  Reichsgericht)  and  all  the  other  courts  are  state  courts 
(courts  of  the  Bundesstaaten) .  The  situation  is  much  as  if,  in  America, 
the  Supreme  Courts  of  all  the  states  were  abolished,  then  all  the  federal 
courts,  except  the  Supreme  Court,  were  done  away  with,  and,  finally, 
the  federal  Supreme  Court  was  placed  at  the  head  of  all  the  forty- 
eight  state  court-systems.  Even  then,  however,  we  should  be  em- 
barrassed by  forty-eight  different  kinds  of  procedure  employed  in  the 
forty-eight  different  state  court-systems,  whereas,  in  Germany,  although 
the  state  courts  are  without  exception  supplied  by  the  separate  states 
(Bundesstaaten)  the  legal  procedure,  throughout,  is  absolutely  uni- 
form, being  federal. 

The  courts  of  Germany  are  as  follows: 

1 ' '  The  Frinci'ples  of   German   Civil  Law, ' '  by  Ernest   J.   Schuster,  Oxford, 
1907,  p.  12. 


17 


OPHTHALMIC  JURISPRUDENCE 

For  Civil  Cases. 

Amtsgerichte. — Suits  involving  property  rights  not  exceeding  in 
value  the  sum  of  300  marks  ($70.00),  and  certain  other  matters  re- 
quiring expedition,  without  regard  to  the  amount  of  the  claim. 

Landgerichte. — Original  jurisdiction  in  all  other  civil  matters  and 
appellate  jurisdiction  from  the  Amtsgerichte. 

Oberlandesgerichte. — Appellate  jurisdiction  from  the  Amtsge- 
richte. 

Reichsgericht. — The  imperial  court:  the  highest  court  in  the  Ger- 
man empire.  Sits  in  Leipzig.  Appellate  jurisdiction  from  the  Ober- 
landesgerichte. 

For  Crimitial  Cases. 

Schoffengerichte. — Simply  the  penal  side  of  the  Amtsgerichte.  One 
judge  and  two  laymen  (or  Schoffen).  Competent  for  all  "Vebertre- 
tungen"  for  the  so-called  ' ' Antragsvergehen"  and  for  those  ''Verge- 
hen"  punishable  at  the  most  with  three  months  in  jail  or  a  fine  of 
600  marks  ($140.00). 

Landgerichte. — Penal  Chamber  thereof.  For  all  other  "Vergehen" 
and  also  for  "Verhrechen"  which  are  punished  at  most  with  five  years 
in  the  house  of  correction,  and  for  the  "Verhrechen"  of  juvenile  per- 
sons. 

Appellate  jurisdiction  over  Schoffengerichte. 

Schwurgerichte. — Three  judges  and  twelve  jurymen  {Gesch- 
worene).  "Verbreche^i"  which  do  not  fall  within  the  jurisdiction  of 
the  Penal  Chamber  of  the  Landgericht  or  of  the  Reichsgericht, 

Oberlandesgerichte. — ^Sit  in  appeal  from  judgments  of  the  Penal 
Chamber  of  the  Landgericht  which  the  chamber  heard  on  appeal,  and 
in  first  instance  cases  from  that  chamber  where  the  revision  is  grounded 
exclusively  upon  some  legal  rule  contained  in  the  Landesgesetzen. 

Reichsgericht. — Penal  Chamber  thereof.  Appeals  from  Schwurge- 
richte and  from  the  Penal  Chamber  of  the  Landgerichte  in  cases  in 
which  that  chamber  had  original  jurisdiction. 

Original  and  final  jurisdiction  in  treason  and  high  treason  against 
Kaiser  and  Kingdom. 

The  court  in  which  either  a  prosecution  or  a  civil  suit  for  malpractice 
would  be  brought,  would  be  the  Landgericht — in  the  case  of  a  prose- 
cution, the  penal  chamber  of  the  court,  of  course.  The  Landgericht 
may,  however,  refer  the  ease  for  trial  to  the  Schoffengericht,  whenever 
it  is  perfectly  obvious  that  the  case  (if  a  prosecution)  cannot  result  in 
a  judgment  for  more  than  six  months'  imprisonment  or  a  fine  of  more 

18 


OPHTHALMIC  JURISPRUDENCE 

than  1,500  marks;  and  it  may  even  refer  a  civil  suit  for  malpractice 
to  the  Amtsgericht  whenever  the  amount  of  damages  demanded  does 
not  exceed  600  marks.  A  matter  which  seems  peculiar  to  Americans 
is  the  extent  to  which  both  medical  and  surgical  malpractice  are,  in 
Germany,  regarded  as  criminal  matters.  Thus,  it  happens  again  and 
again,  in  that  country,  that  the  same  professional  negligence,  or  alleged 
negligence,  is  both  sued  upon  and  prosecuted  simultaneously.  The 
injured  person,  however,  is  not  obliged  to  wait  (as  in  some  lands) 
until  the  criminal  action  has  been  disposed  of  before  he  can  bring  his 
suit  for  damages.  Nor  is  he  obliged  to  sue  simply  and  solely  because 
a  prosecution  has  been  brought.  The  prosecuting  attorney  {Staatsan- 
ivalt)  is,  on  the  contrary,  under  official  obligations  to  prosecute  when- 
ever he  learns  of  a  case  of  probable  malpractice — which,  not  infre- 
quently, is  when  he  first  receives  intelligence  that  a  civil  suit  has  been 
begun.  It  is  generally  the  case,  however,  that  the  injured  person 
allows,  or  causes,  the  criminal  prosecution  to  precede  his  civil  suit, 
because,  in  the  criminal  action  he  has  no  costs  to  pay,  however  the 
case  is  decided,  and  also  because,  if  the  criminal  action  is  decided  in 
his  (i.  e.,  the  State's)  favor,  then  he  is  absolutely  certain  of  a  judg- 
ment in  his  case  for  damages,  while  if,  upon  the  other  hand,  the 
defendant  is  discharged  in  the  criminal  action,  such  a  judgment  is  no 
bar  at  all  to  a  later  suit  for  damages.  An  appeal  from  the  Landge- 
richt  would  lie  to  the  Oherlandesgcricht  and,  thence,  to  the  Beichsge- 
richt.  The  functions  of  a  medical  court-expert  in  Germany  are  pretty 
well  indicated  by  the  jurisdictions  of  the  different  courts.  The  peculiar 
hierarchy  of  medical  officials  in  Germany  will  be  explained  later. 

Ba»ic  Legal  Principles  and  Chief  Courts  of  Italy. 

The  fundamental  legal  views  of  Italy  are  much  the  same  as  those 
of  France.  Judicial  decisions  (giurispriidenza)  have,  as  in  France,  no 
force  at  all  as  law — except  as  "persuasive  authority" — still,  contrary 
to  the  case  of  France,  ministerial  edicts  do  possess  binding  authority. 
The  system  of  courts  in  the  two  countries  is  very  similar.  Thus,  in 
Italy : 

For  Civil  Cases. 

Jiidici  di  Conciliatori. — Jurisdiction  up  to  100  francs. 
Pretore. — Jurisdiction  up  to  1,500  francs. 

Tribunale. — Original  jurisdiction  in  all  claims  of  over  1,500  francs, 
and  appellate  jurisdiction  in  certain  cases  from  the  pretore. 
Appello. — Court  of  Appeals.    Hears  appeals  from  the  tribunale. 

19 


OPHTHALMIC  JURISPRUDENCE 

Cassazione. — Highest  court  in  Italy,  Jurisdiction  where  error  has 
been  committed  on  either  side. 

For  CrimiiKil  Cases. 

Pretore. — Petty  cases. 

Trihunale. — The  penal  chamber  thereof. 

Corte  d' Assise. — Where  the  crime  is  punishable  by  not  less  than 
five  years  imprisonment.  Tries  by  jury,  the  assize  court  being,  as  in 
France,  the  only  tribunal  which  acts  in  conjunction  with  a  jury.  No 
appeal. 

A  civil  suit  for  malpractice  would  be  begun  either  in  one  of  the 
pretorian  courts  or  in  one  of  the  tribunale,  according  to  the  amount  of 
the  demand,  A  marked  peculiarity,  however,  of  the  Italian  law,  is 
that  a  judgment  for  damages  cannot  be  secured  against  a  physician 
until  a  criminal  prosecution  has  first  been  brought  against  him,  and 
successfully,  on  the  same  state  of  facts. 

There  is  no  corps  of  ''ofncial  expert  witnesses  before  the  courts" 
in  Italy,  The  medical  expert  system  is,  in  fact,  almost  the  same  in 
Italy  as  it  is  in  Common  Law  countries. 

"We  have  now  reviewed,  in  a  very  brief  manner,  the  court-systems 
and  fundamental  legal  principles  of  the  various  lands  proposed  to  be 
considered  in  this  section — America,  England,  France,  Germany,  and 
Italy — systems  and  principles  which,  to  some  degree,  must  be  kept  in 
mind,  if  the  remaining  (and  more  specific)  portions  of  this  article 
are  to  be  really  comprehended. 

II, 

OPHTHAIiMIC   EXPERT   TESTIMONY. 

A. — Legal  considerations. 

Legal  considerations  regarding  ophthalmic  expert  testimony  in  the 
United  States.  In  America,  as  in  every  civilized  country,  witnesses 
are,  from  the  nature  of  the  testimony  which  they  give,  divided  into 
two  very  sharply  differentiated  classes — ordinary  witnesses  and  ex- 
pert witnesses.  The  former  class  simply  testify  to  facts,  the  latter — 
the  expert — to  opinions  that  are  founded  upon  facts,  either  actual  or 
assumed.  Says  Hutchins  :^  ' '  Ordinarily  it  is  the  province  of  the  jury 
to  consider  the  facts  in  the  case,  and,  uninfluenced  by  the  opinions  of 
witnesses,  draw  such  inferences  therefrom  as  their  judgment  may  dic- 


1 ' '  The  Physician  as  an  Expert, ' '  Michigan  Law  Eevieiv,  Apr.,  1904,  Vol.  II, 
No.  7,  p.  601. 

20 


OPHTHALMIC  JURISPRUDENCE 

tate.  But  in  cases  involving  questions  outside  of  the  ordinary  range 
of  inquiry,  in  which  correct  conclusions  can  be  drawn  from  the  facts 
only  by  means  of  scientific  deductions,  it  is  apparent  that  most  jurors 
would  be  unable  to  perform  the  functions  that  the  law  imposes  upon 
them,  unless  aided  in  their  deliberations  by  the  judgment  and  opinions 
of  witnesses  skilled  and  experienced  in  the  subject  under  investiga- 
tion." From  this  it  readily  appears  that  the  expert  witness  is  really 
an  interpreter  of  the  facts.  He  stands  to  the  jury  (or,  in  some  in- 
stances and  lands,  the  judge)  in  much  the  same  relation  as  a  linguistic 
interpreter  does  in  the  case  of  a  witness  who  cannot  speak  the  language 
of  the  court  in  question,  or  of  a  witness  who  is  deaf  and  dumb.  He 
tells  the  jury  or  the  judge  the  real  meaning  and  import  of  the  facts 
adduced  by  the  ordinary  witnesses — a  meaning  and  an  import  which 
the  judge  or  the  jury  could  not,  presumably,  extract  from  these  facts 
themselves,  by  reason  of  their  lack  of  special  education  with  regard 
to  the  matter  in  question. 

An  expert  witness  may  be  a  carpenter,  a  miner,  a  railroad  man  or 
a  chemist,  a  lawyer  ^  or  a  dealer  in  silks ;  in  very  many  cases  he 
happens  to  be  a  druggist,  a  dentist,  or  a  doctor;  in  every  case,  how- 
ever, he  is  called  upon  to  aid  the  jury  or  the  judge  to  interpret  ordi- 
nary facts  by  means  of  the  expert,  unordinarj^  knowledge  which  he 
possesses.  Here,  of  course,  we  shall  treat  of  these  matters  with  espe- 
cial reference  to  the  needs  of  the  doctor,  and  with  more  especial  refer- 
ence still  to  those  of  the  ophthalmologist. 

First  of  all,  however,  it  is  well  enough  to  understand  that  certain 
things  are  so  generally  known  and  accepted  that  they  do  not  need  to 
be  proved  by  any  kind  of  evidence  whatever.  Such  matters  are  said, 
in  legal  parlance,  to  be  "judicially  noticed."  Among  such  matters 
are :  The  existence  and  titles  of  sovereign  powers,  their  flags  and 
seals,  the  general  customs  of  merchants,  the  movements  of  the  astron- 
omical bodies,  legal  weights  and  measures,  matters  of  public  history, 
domestic  law,^  etc.  All  these  and  various  other  matters  need  not  be 
proved.     The  court  is  presumed  to  know  them. 

Then,  too,  there  is  a  kind  of  evidence  which  does  not  depend  on 
human  testimony — namely  that  which  arises  from  what  is  legally  de- 
scribed as  ''autoptic  proference, "  i.  e.,  the  displaying  of  the  thing 
itself.  Says  Wigmore :  ^  "If  the  question  is  whether  a  man  is  of 
negro  complexion,  or  whether  a  shoe  is  fastened  by  laces  or  by  but- 


1  See  the  next  succeeding  footnote. 

-  But  not  foreign  law.    Foreign  law,  as  hinted  supra,  must  be  proved  by  expert 
testimony  given  by  those  who  are  specially  skilled  in  the  subject. 
3  Note  to  Greenleaf  on  Evidence,  16th  ed.,  1899,  p.  27. 

21 


OPHTHALMIC  JURISPRUDENCE 

tons,  the  testimony  of  one  who  has  seen  the  man  or  the  shoe,  or  the 
circumstance  that  the  man 's  child  is  a  negro  or  that  a  button  has  fallen 
from  a  shoe,  can  at  least  not  be  more  satisfactory  than  the  inspection 
of  the  man  or  the  shoe  in  court."  Thus  a  judge  may  take  his  watch 
and  note  ''the  length  of  a  minute  for  the  benefit  of  the  jury,"  and  a 
doctor  may  demonstrate  the  effects  of  an  injurious  substance,  and  a 
man  whose  eyes  have  been  removed  may,  under  appropriate  circum- 
stances, exhibit  before  the  court  his  empty  sockets. 

Then,  finally,  there  comes  human  testimony.  This,  as  a  matter  of 
course,  plays  the  star  part  in  almost  every  trial. 

Now,  to  return  to  our  beginning  point,  the  witnesses  who  render 
human  testimony  are  of  two  great,  widely  differing  varieties — the 
ordinary  and  the  expert,  the  latter  of  which  will  be  considered  here. 

In  treating  of  expert  witnesses  we  divide  our  subject  thus :  Attend- 
ance in  court,  how  secured;  competency ;  exammation  and  cross-exam- 
ination; privileged  communications ;  matters  concerning  which  an  ex- 
pert witness  may  testify ;  manner  of  testifying;  fees. 

The  attendance  in  court  of  any  witness  is  secured  by  the  service  of 
a  writ  called  subpoena  ad  testificandum.  The  service  is  accomplished 
by  showing  the  original  and  leaving  a  copy  thereof,  or  else  a  ticket  con- 
taining the  original  in  substance.  In  civil  cases  there  must  also  be 
made  a  payment,  or  at  least  a  tender,  of  the  amount  required  for 
mileage  as  well  as  for  one  day's  attendance  at  the  court.  In  criminal 
cases,  however,  the  witness  pays  his  own  expenses,  being  afterwards 
reimbursed  by  the  court  in  accordance  with  various  provisions  of  the 
law. 

In  court,  immediately  after  the  swearing  of  the  witness,  there  arises 
the  question  of  his  competency.  In  fact,  the  competency  of  a  witness 
to  testify  as  an  expert  must  always  first  be  shown  before  he  is  per- 
mitted to  testify  in  his  expert  capacity.  (Of  course,  the  same  man  may 
be  testifying  both  as  ordinary  and  as  expert.) 

Now  then,  what  is  an  expert,  especially  a  medical  expert?  In  other 
words,  what  qualifications  are  necessary  to  constitute  a  man  a  medical 
or  surgical  expert,  or  to  render  him  ' '  competent  ? ' '  This  is  a  question 
of  very  great  importance  to  the  ophthalmic  surgeon,  as  the  merest 
matter  of  course.  In  the  very  first  place  Ave  may  remark  that,  in  order 
to  testify  as  a  medical  or  surgical  expert  even  in  a  case  of  injury  to 
the  eye,  it  is  by  no  means  necessary,  from  a  legal  point  of  view,  that 
the  witness  should  be  an  oculist  or  even  a  specialist  with  anj^  sort  or 
kind  of  limitation  whatever  on  his  practice — as  eye  and  ear  only,  or 
only  eye,  ear,  nose  and  throat.  Nor  is  it  necessary  that  he  ever  have 
made  a  special  study  of  the  eye.    Nor  is  it  at  all  essential  that  he  be 

22 


OPHTHALMIC  JURISPRUDENCE 

a  graduate  of  any  particular  school  of  medical  practice.  Nor,  further, 
that  he  he  a  graduate  at  all,  or  even  a  licensee  on  the  ground  of  years 
of  practice.  Nor  that  he  be  in  the  active  practise  of  his  profession,  or 
that  he  ever  have  practised  at  any  time.  None  of  these  matters  go  at 
all  to  the  question  of  the  admissibility  of  the  evidence.  Such  things 
(i.  e.,  minority  of  qualification)  may,  indeed,  be  shown,  on  examination 
either  direct  or  cross,  but  such  matters  simply  affect  the  weight  which 
the  jury  may  see  fit  to  attach  to  the  testimony  that  is  rendered :  they 
do  not  har  the  testimony. 

Nevertheless,  certain  qualifications  are  really  necessary  to  constitute 
a  man  a  medical  or  surgical  expert.  Now  what  are  these  qualifications  ? 
They  are,  in  short,  whatever  will  tend  to  confer  upon  the-  witness  un- 
usual knowledge  or  skill  relating  to  the  matter  in  question.  Thus,  in 
Lind  V.  Masonic  Ass'n  of  Western  N.  Y.,i  a  nurse  who  had  witnessed 
a  surgical  operation  was  permitted  to  testify  for  what  disease  the 
operation  had  been  performed,  on  the  ground  that,  for  twenty-one 
years  he  had  been  a  nurse  in  a  hospital  and  had  seen  much  general  and 
surgical  work.  Thus,  again,  in  Mason  v.  Fuller,^  it  was  held  that  a 
woman  who  had  had  no  training  whatever  in  medicine,  or  indeed  even 
in  the  single  branch  of  midwifery,  but  who  had  had  long  experience  as 
a  nurse  in  child-birth  cases,  was  competent  to  render  expert  testimony 
as  to  whether  the  birth  of  a  child  was  premature.  Said  the  judge: 
"The  witness,  by  her  experience  and  observation,  appears  to  have 
acquired  knowledge  of  the  subjects  about  which  she  was  testifying 
that  persons  generally  do  not  have,"  In  State  v.  Cook,^  it  was  held 
that  a  chemist  and  toxieologist  who  was  not  a  physician  and  surgeon, 
and  who  had  had  no  medical  training  whatever,  was  competent  to 
testify  as  an  expert  concerning  the  effect  of  strychnine  upon  the 
human  stomach  and  the  system  in  general.  In  Everett  v.  The  State,^ 
it  was  held  that  a  physician  and  surgeon  who  had  been  in  active  prac- 
tice, but  who,  at  the  time  of  the  trial,  had  been  retired  from  profes- 
sional work  for  some  time,  was  sufficiently  well  qualified  to  testify  as 
an  expert.  In  TuUis  v.  Kidd,^  it  was  held  that  a  witness,  to  qualify 
as  expert,  need  never  have  been  engaged  in  active  practice.    Said  the 


1  88  N.  Y.  Sup.  Ct.  E.  287,  30  N.  Y.  S,upp.  775. 

2  45  rt.  29. 

3  17  Kan.  392. 
*  62  Ga.  65. 

5  12  Ala.  648,  650.  The  opinion  as  to  the  competency  of  this  particular  wit- 
ness would  seem  to  be  oMter  dicta.  Moreover,  the  case  is  not  a  "recent"  one, 
dating,  as  it  does,  to  1847.  Nevertheless,  it  is  quite  within  the  spirit  of  legal 
holdings  regarding  these  matters  generally,  and  would  probably  be  taken  as  law 
in  almost  any  jurisdiction  in  the  U.  S.,  where  the  matter  is  not  controlled  by 
Btatute. 

23 


OPHTHALMIC  JURISPRUDENCE 

court :  "If  one  asserts  an  ability  to  give  correct  opinions  upon  any 
art  or  science,  from  an  acquaintance  with  the  subject,  acquired  by 
observation  and  study,  we  cannot  perceive  on  what  ground  he  can  be 
rejected  because  he  has  not  been  in  the  actual  practice  of  his  profes- 
sion." In  the  same  case,  as  it  happened,  a  similar  question  of  com- 
petency arose.  The  witness  had  attended  a  course  of  medical  lectures, 
been  licensed  by  the  state,  and  had  practised  medicine  for  one  year. 
Then  he  had  abandoned  medicine  for  the  law,  and  had  been  engaged 
in  legal  practice  for  sixteen  consecutive  years.  He  was  held  to  be 
competent  as  a  medical  expert,  partly  on  the  ground  that  he  had  never 
quite  ceased  to  read  medicine. 

Another  extremely  interesting  instance  arose  in  California.^  In  this 
case  it  was  held  that  a  Catholic  priest  might  testify  as  an  expert  in 
the  matter  of  mental  soundness  or  unsoundness.  The  opinion  was 
based  to  some  extent  on  the  ground  that  the  education  which  this 
clergyman  had  received  in  his  school  of  theology,  had  been  designed 
in  part  to  fit  him  to  examine  into  and  decide  upon  such  matters.  Said 
the  court :  "It  was  a  part  of  his  collegiate  education,  and  it  was  espe- 
cially a  matter  of  daily  practice  with  him  for  ten  years  to  familiarize 
himself  with  the  mental  condition  of  persons  upon  whom  he  was  called 
to  attend  in  his  character  as  a  priest ;  and  it  does  seem  to  us  that, 
from  both  education  and  experience,  he  was  peculiarly  qualified  to 
express  an  opinion,  as  an  expert,  on  the  question  of  mental  diseases." 

The  culminating  point  of  interest,  however,  regarding  this  matter 
of  medical  expert  competency,  for  the  ophthalmologist  at  least,  lies  in 
the  fact  that  the  law  does  not  require  the  witness  to  have  made  a 
specialty,  either  in  practice  or  in  study,  of  any  of  the  matters  con- 
cerning which  he  is  called  upon  to  testify.^  Thus  a  man  who  has 
never  seen  a  case  of  glaucoma  (sometimes,  perhaps,  who  has  never  read 
a  report  of  a  case — for  such  men  actually  exist)  is  permitted  to  testify, 
merely  from  the  sketchiest  text-book  knowledge  of  the  subject,  as  to 
whether  or  not  a  given  set  of  symptoms  should,  or  should  not,  have 
been  diagnosed  as  glaucoma,  and  as  to  whether  an  iridectomy  therefor 


1  Estate  of  Toomes,  54  Cal.  509. 

2  Hathaway  v.  National  Life  Ins.  Co.,  48  Vt.  335,  351 ;  State  v.  Eeddick,  7  Kan. 
143;  Hastings  v.  Eider,  99  Mass.  622;  Horton  v.  Greene,  64  N.  C.  64;  Kelly  v. 
United  States,  27  Fed.  Bep.  616;  s.  c,  8  Cr.  Law  Mag.  174.  In  Castner  v.  Sliker, 
33  N.  J.  L.  95,  it  is  held  that  a  physician  may  testify  fully  as  to  various  ocular 
injuries,  though  neither  oculist  nor  surgeon.  Thus,  too,  Wigmore,  citing  seven 
cases,  in  a  note  to  "Greenleaf  on  Evidence,'^  16th  ed.,  1899,  p.  54:  "On  mat- 
ters in  which  special  medical  experience  is  necessary,  the  question  may  arise 
whether  a  general  practitioner  will  suffice,  or  whether  a  specialist  in  the  particular 
subject  is  necessary.  The  courts  usually  and  properly  repudiate  the  finical  demand 
for  the  latter  class  of  witnesses."  The  same  writer,  loc.  cit.:  "As  to  sanity,  it 
is  now  universally  conceded  that  a  layman  is  competent  to  form  an  opinion. ' ' 

24 


OPHTHALMIC  JURISPRUDENCE 

should  or  should  not  have  been  performed  at  all,  and  whether  or  not,  in 
case  it  was  performed,  it  was  performed  correctly.  Perhaps  even  a 
nurse  in  an  ophthalmic  hospital  would  be  permitted  to  give  evidence 
on  such  matters.  The  absurdity  (medically  speaking,  of  course)  is 
sufficiently  manifest,  but,  in  the  eyes  of  the  law,  is  entirely  removed, 
or,  rather,  ' '  remedied, ' '  by  the  fact  that  the  opposing  counsel  is  always 
permitted  to  show,  on  cross-examination,  just  how  slight  the  expert's 
real  expertness  is.  However,  to  one  who  understands  even  a  very 
little  of  human  nature  (and  glaucoma)  this  privilege  of  cross-examina- 
tion constitutes  by  no  means  a  sufficient  defense  against  misapprehen- 
sion on  the  part  of  the  jury.  The  really  inexpert  expert's  testimony 
may  leave  some  sort  of  impression  on  the  jury,  whereas,  as  a  matter 
of  course,  it  ought  not  to  leave  any.  The  testimony  of  such  an  "ex- 
pert" should  be  inadmissible.^ 

But  this  is  not  all.  It  is  held  that  a  specialist  in  diseases  of  the  eye 
may  not  testify  regarding  medical  or  surgical  matters  that  do  not  lie 
within  his  special  field.^  Says  Rogers,  in  his  admirable  work  on 
"Expert  Testimony,"  p.  101:  "But  one  who  devotes  himself  exclu- 
sivelj'  to  one  branch  of  his  profession,  making  a  specialty  of  that,  and 
having  no  practical  experience  beyond  it,  is  incompetent,  as  a  general 
rule,  to  express  an  opinion  on  a  question  that  does  not  pertain  to  his 
specialty."  So  a  specialist  that  has  never  been  engaged  in  general 
practice,  cannot  testify  regarding  medical  matters  generally,  whereas 
a  general  practitioner,  who  has  never  been  engaged  in  special  practice, 
or  indeed  in  practice  of  any  sort  or  variety,  but  who  has  only  ' '  studied 
medicine,"  may  testify  regarding  matters  medical,  whether  of  a 
general  nature  or  a  special.  Nay,  further,  a  man  who  has  never  even 
studied  medicine,  but  who  has  merely  served  as  a  nurse,  or  acted  as  a 
minister  or  priest,  may,  under  certain  circumstances,  exercise  the 
functions  of  the  medical  expert,  either  general  or  special. 

No  doubt  the  proper  rule  should  be  that  expert  testimony  should 
be  really  expert ;  that,  for  instance,  only  internists  in  actual  practice 
at  the  time  of  testifying  should  be  permitted  to  testify  regarding 
matters  of  internal  medicine,  practising  surgeons  regarding  sur- 
gery, dermatologists  regarding  dermatological  matters,  and,  similarly, 
in  the  case  of  oculists,  aurists,  and  specialists  of  every  kind.  "Pantolo- 
gists"  do  not  exist,  and  courts  should  recognize  the  fact.    Provision, 


1  The  following  may  be  instructive :  In  a  certain  trial  I  heard  a  physician 
on  the  witness  stand  repeatedly  refer  to  a  pterygium  as  a  "  strinthium. ' '  Another 
"expert,"  preparing  for  another  trial,  spoke  often  of  a  "silk-fork"  fracture  of 
the  radius.  These  Mrs.  Partingtons  of  the  witness-stand  might  very  appropriately 
be  abolished. 

2  Fairchild  v.  Bascomb,  35  Vt.  410. 

25 


OPHTHALMIC  JURISPRUDENCE 

of  course,  should  be  made  for  eases  where  the  "best"  evidence  could 
not  be  obtained,  as  where,  owing  to  the  distance  from  medical  centers, 
actual  experts  were  not,  practically  at  least,  procurable,  and  where, 
owing  to  the  death  or  disappearance  of  some  person,  a  witness  who 
had  actually  seen  and  examined  that  person  would,  though  not  an 
actual  expert,  necessarily  testify,  if  any  sort  or  kind  of  testimony  in 
the  matter  were  to  be  obtained  at  all.  Some  of  these  matters,  of 
course,  could  and  should  be  placed  within  the  discretion  of  the  trial 
court.  The  prevailing  rule,  however,  should  be  in  accordance  with 
that  general  principle  of  evidence,  which  "requires  the  best  evidence 
of  which  the  case  in  its  nature  is  susceptible. "  ^  A  general  practitioner 
cannot  give  the  "best"  evidence  regarding  injuries  to,  or  diseases  of, 
special  organs. 

It  is  only  fair  to  add  that  in  the  state  of  Wisconsin  a  little  has  been 
done  by  statute^  in  the  way  of  barring  certain  inexpert  experts.  In 
this  state  "no  person  practising  physic  or  surgery,  or  both,  shall  have 
the  right  ...  to  testify  in  a  professional  capacity  as  a  physician 
or  surgeon  in  any  case  unless  he,  before  the  twentieth  day  of  April, 
1897,  received  a  diploma  from  some  incorporated  medical  society  or 
college,  or  shall  since  said  date  have  received  a  license  from  the  state 
board  of  medical  examiners."  This,  as  will  be  seen,  bars  the  nurses, 
the  students,  the  midwives,  and  the  clergymen,  but,  unfortunately, 
does  not  exclude  the  inexpert  expert  who  happens  to  be  the  proud 
possessor  of  a  license  or  a  diploma,  and  yet  who  cannot  distinguish 
glaucoma  from  iritis. 

Immediately  upon  the  establishment  of  the  "expert's"  competency, 
follows,  of  course,  the  direct  examination  and  then  the  cross-examinor- 
Hon.  By  "direct  examination"  is  meant  the  "examination  by  the 
counsel  for  the  party  in  whose  behalf  he  was  called."  Under  this 
examination  the  witness  may  either  (a)  tell  his  story  in  narrative 
form,  or  (b)  respond  to  various  (and  generally  numerous)  questions. 
When  giving  his  testimony  according  to  the  latter  method,  the  ques- 
tions must  not  be  "leading" — i.  e.,  such  as  suggest  the  answer  desired. 
The  ordinary  witness,  too,  must  confine  himself  strictly  to  facts, 
excluding  rigidly  all  opinions  or  inferences ;  the  expert,  however,  may, 
within  certain  limitations  of  course,  give  testimony  as  to  opinions;  in 
truth  he  is  really  an  "opinion"  witness. 

The  cross-examination  is  made  by  the  opposing  counsel,  and  its 
purpose,  of  course,  is  to  overthrow  or  weaken  the  testimony  rendered 
under  the  direct  examination.    In  the  cross-examination,  leading  ques- 


1  Greenleaf  on  Evidence,  16th  ed.,  1899,  p.  170. 

2  Wisconsin  Statutes,  1898,  Vol.  I,  See.  1436. 

26 


OPHTHALMIC  JURISPRUDENCE 

tions  are  permitted.  The  "latitude"  (i.  e.,  scope,  or  field,  covered  by 
the  questions)  allowed  in  the  cross-examination  is  different  in  the 
different  states.  On  the  whole,  the  best  rule  would  seem  to  be  that  a 
witness  is  subject  to  cross-examination  on  everything  that  is  relative 
to  the  case.  The  rule  most  generally  adopted,  however,  is  that  the 
cross-examination  must  be  limited  strictly  to  matters  concerning  which 
the  witness  testified  under  his  direct  examination.  The  whole  matter 
of  latitude,  however,  lies  largely  within  the  discretion  of  the  trial  judge. 
All  the  evidence,  it  may  be  noted,  in  passing,  must  be  relevant  and 
competent.  By  relevant  is  meant  "of  sufficient  probative  value  to  be 
admissible  at  all."^  By  competent  is  intended,  legally  fit,  regardless 
of  the  question  of  relevancy.  One  of  the  subordinate  rules  coming 
under  the  rule  requiring  "competency,"  is  the  so-called  "best  evi- 
dence" rule,  b}^  which  is  meant,  as  before  stated,  that  a  court  will 
require  to  be  produced  "the  best  evidence  of  which  the  case  in  its 
nature  is  susceptible."  Another  subordinate  rule,  under  the  general 
rule  of  competency  (perhaps,  too,  falling  under  that  of  the  "best 
evidence")  is  that  "hearsay  evidence  is  not  admissible."  Thus,  a 
physician,  for  example,  may  not  testify  that  another  physician  had 
said  to  him  that  such  and  such  an  injury  might  very  readily  have 
caused  the  plaintiff's  traumatic  cataract.  He  must  give  his  own  opin- 
ion. If  the  opinion  of  the  other  physician  be  desired,  then  that  other 
physician  must  be  brought  into  court,  there  to  render  such  opinion. 

Closely  connected  with  the  subject  of  direct  and  cross-examination, 
is  that  of  privileged  communications.  Even  in  the  earliest  times  in 
England  (from  which  country  we  inherit,  as  before  stated,  most  of 
our  fundamental  legal  principles)  certain  matters  have  been  consid- 
ered inviolably  sacred,  and  have  been  most  carefully  protected  from 
disclosure  in  the  courts.  Such  matters  were  called  "privileged  com- 
munications," and  were  privileged  at  the  common  law — i.  e.,  they  did 
not  require  a  statute  for  the  purpose  of  rendering  them  privileged.  It 
was  ' '  case  law, "  or  "  judge  law, "  or  "  common, "  or  "  unwritten ' '  law. 
These  privileged  matters  were,  in  general :  State  secrets,  deliberations 
in  the  jury  room,  communications  between  counsel  and  client,  and 
communications  of  a  confidential  nature  between  husband  and  wife. 
Communications,  however,  made  to  clergymen  and  doctors,  though 
sacred  in  fact,  were  not  held  to  be  sacred,  or  "privileged,"  in  law. 
Hence  these  matters  are  unprivileged  still,  even  in  the  United  States, 
except  so  far  as  has  been  provided  otherwise  by  statute.  Happily,  in 
most  of  the  states  of  this  country,  statutes  have  been  enacted  which, 


1  Greenleaf  on  Evidence,  16th  ed.,  1899,  p.  36, 

27 


OPHTHALMIC  JURISPRUDENCE 

with  certain  appropriate  limitations,  protect  the  physician  from  dis- 
closing on  the  witness  stand,  without  the  patient 's  consent,  ' '  any  com- 
munication made  to  him  by  his  patient  with  reference  to  any  physical 
or  supposed  physical  disease,  or  any  knowledge  obtained  by  a  per- 
sonal examination  of  any  such  patient.  "^ 

As  to  the  matters  concerning  which  an  expert  witness,  may  testify, 
we  may  say  that  these,  in  a  word,  considered  together,  are  about  as 
wide  as  the  whole  broad  field  of  medicine.  Most  commonly  in  question, 
however,  in  courts  of  law,  are  the  following  medical  topics :  Whether 
a  given  person  is  insane ;  the  cause  of  a  certain  death ;  whether  a 
certain  disease  is  incurable ;  whether  a  certain  disease  is  curable  with- 
out operation ;  what  might  have  been  the  cause  of  a  given  injury ;  what 
a  reasonable  bill  would  be  for  certain  medical  or  surgical  services; 
whether  a  certain  affection  is  or  is  not  painful;  the  degree  of  reduc- 
tion in  earning  power  produced  by  a  given  disease ;  the  probability  of 
this  reduction  (or  of  some  disfigurement)  being  permanent  or  tem- 
porary. 

As  to  the  expert's  manner  of  testifying,  it  is  hardly  necessary  here 
to  enter  upon  the  customary  platitudes,  such  as  that  the  expert  should 
always  be  honest;  that  he  should  neither  speak  too  loud  nor  yet  in  a 
whisper ;  that  he  should  always  act  the  gentleman ;  never  put  in  tech- 
nical terms  what  could  be  more  simply  stated;  etc.,  etc.  However, 
one  admonition  may  not  be  out  of  place :  viz.,  an  expert,  and  more 
especially  an  expert  expert,  as  an  ophthalmic  surgeon  is  always  sup- 
posed to  be,  should  ever  be  exceedingly  careful  not  to  express  an 
opinion  with  too  great  particularity.  This,  I  think,  is  a  fault  to  which 
the  specialist  is  notably  prone.  He  seems,  in  fact,  to  feel  that  he  is 
expected  to  be  very  precise  and  accurate,  just  because  he  is  a  specialist. 
Nevertheless,  he  should  not  testify,  for  example :  ' '  My  opinion  is  that 
this  traumatic  cataract  was  caused  by  a  blow  from  a  heavy  cane, ' '  for, 
in  fact,  no  one  could  tell,  merely  from  the  injury,  whether  a  given 
cataract  had  been  produced  by  a  heavy  cane  or  a  ligtt  one.  To  refer 
to  an  actual  instance :  He  should  not  allege  that  a  certain  detachment 
of  the  retina  had  been  produced  by  a  snowball,  squeezed  very  hard. 
The  same  detachment  might,  in  truth,  have  been  produced  by  almost 
any  solid  object  impinging  upon  the  eye  with  violence.^ 


1  The  language  of  the  statute  varies,  to  be  sure,  in  the  different  states.  The 
matter  above  quoted  is  from  the  Kansas  statute. 

2  I  saw,  however,  an  interesting  case  of  ocular  injury  (never  the  subject  of 
legal  investigation)  in  which  an  expert  witness  could  easily  and  truthfully  have 
testified  with  exceedingly  great  precision.  The  wound  had  been  inflicted  by  a 
butcher  with  his  "steel,"  or  knife-sharpener,  on  a  customer  with  whom  he  had 
had  an  altercation  in  his  shop.  The  partly  punctured,  partly  contused,  character 
of  the  wound  in  the  cornea,  together  with  the  presence  of  raw  beef  fibres  in  the 

28 


OPHTHALMIC  JURISPRUDENCE 

An  expert  witness,  as  before  stated,  may  testify  either  to  facts  or  to 
opinions ;  i.  e. — either  in  his  ordinary  or  in  his  expert  capacity.  When 
testifying  to  opinions,  his  opinions  may  be  based  either  on  facts  ob- 
served and  testified  to  by  himself,  or  on  facts  observed  and  testified 
to  by  others.  In  the  latter  contingency  (and  in  that  alone)  the  ques- 
tions which  are  asked  him  must  ever  be  fashioned  in  what  is  tech- 
nically known  as  the  hypothetical  form.  It  therefore  behooves  the 
medical  expert  to  understand  somewhat  the  nature  of  the  hypothetical 
question. 

Now,  what  is  "the  hypothetical  question?"  The  hypothetical  ques- 
tion is  a  question  which  is  based  upon  the  assumption  that  all,  or  part, 
of  certain  facts  already  in  evidence,  or  yet  to  be  placed  in  evidence,  is 
true.  It  assumes,  or  hypothecates,  the  truth  of  certain  fact-testimony, 
in  order  that  the  opinion-witness,  i.  e.,  the  expert,  may  have  an  oppor- 
tunity to  render  an  opinion  thereon.  The  very  reason  for  the  exist- 
ence of  such  a  form  of  qviestion,  is  that  it  is  not  the  function  of  the 
expert,  but  of  the  jury,  to  determine  whether  or  not  such  fact-testi- 
mony is  true.  The  jury  may  accept  the  fact-testimony  together  with 
the  opinion  which  is  based  upon  it,  or  the  fact-testimony  without  the 
opinion,  but,  under  no  circumstances,  of  course,  can  it  reject  the  fact- 
testimony  and  accept  the  opinion. 

Perhaps  an  illustration  will  serve  to  clarify  the  nature  of  this  im- 
portant kind  of  question.  Doctor  A,  an  oculist,  is  called  to  the 
witness-stand.  Having  been  sworn  and  qualified,  he  is  asked,  for  in- 
stance, "What  did  the  defendant  then  do?"  Ans. — "He  struck  the 
plaintiff  with  a  stick."  Q. — "On  what  part  of  the  body  did  the  blow 
fall?"  Ans. — "1  do  not  know;  I  was  not  close  enough  to  tell  exactly." 
All  this,  it  will  be  observed,  is  merely  ' '  ordinary, ' '  or  fact,  testimony — 
such  as  any  witness  might  conceivably  be  able  to  furnish.  Suppose, 
now,  another  physician.  Doctor  B,  has  testified  that  the  plaintiff's  un- 
injured eye  is  only  rudimentary  and  has  never  at  any  time  had  sight, 
and,  further,  that  very  shortly  after  the  assault  he.  Dr.  B,  dressed 
the  left  eye  (the  eye  which  defendant  is  said  to  have  injured,  and 
for  damages  to  which  the  present  suit  is  brought)  and  that,  in  the 
injured  e3^e,  he  found  a  sliver  of  wood  2y-2  inches  long,  y^  i^ich  wide, 
and  %  inch  thick,  impaling  the  eye  "fore  and  aft,"  passing  from  the 
center  of  the  cornea  to  the  back  of  the  eye,  there  perforating  the  wall 
of  the  eye  and  piercing  the  orbital  fat,  or  cushion  on  which  the  eye  is 
supported.  In  this  condition  (still  other  evidence  has  shown)  the 
plaintiff  walked  along  six  blocks,  making  three  turns,  picking  his  way 


anterior  chamber  and  in  the  conjunctival  ciil  de  sac,  bespoke  the  nature  of  the 
instrument  with  which  the  wound  had  been  inflicted,  to  a  high  degree  of  certainty. 

29 


OPHTHALMIC  JURISPRUDENCE 

over  crowded  crossings,  and  avoiding  by  himself  numerous  vehicles 
and  foot  passengers,  that  then,  still  unassisted,  he  ascended  the  stairs 
to  Dr.  B  's  office  and  rang  his  bell.  Now,  counsel  for  defendant  desires 
to  show  by  Dr.  A  that  such  acts  could  not  have  been  performed  by 
anyone  with  his  eyes  in  the  condition  above-mentioned.  His  question 
will  have  to  be  hypothetical,  because  it  is  based  on  facts  (and  opinions 
admitted  on  both  sides — which  are  treated  as  facts)  that  had  been 
testified  to  by  others.  Q. — "Could  a  man  with  one  eye  blind  from 
birth  and  with  the  other  impaled  'fore  and  aft'  by  a  sliver  of  wood 
21/2  inches  long,  ^2  inch  wide,  and  i^  inch  thick,  passing  from  the 
center  of  the  cornea  to  the  back  of  the  eye,  there  perforating  the  wall 
of  the  eye  and  piercing  the  orbital  fat,  or  cushion  on  which  the  eye 
rests — could  a  person  in  such  a  condition  have  walked,  alone  and  un- 
assisted, six  blocks,  making  three  turns,  picking  his  way  over  crowded 
crossings,  etc.,  etc.?"    Ans. — "In  my  opinion,  he  could  not." 

But  suppose  that  Dr.  A  has  been  asked  to  examine  the  plaintiff, 
and  to  report  upon  the  findings.  He  discovers,  let  us  say,  in  the 
plaintiff's  left  eye  a  small  circular  scar  on  the  cornea,  2  mm.  in  circum- 
ference, well  off  the  pupillary  area,  and,  in  addition,  a  sound  lens,  a 
sound  vitreous,  a  sound  fundus — in  short  a  totally  sound  eye  in  every 
single  particular,  saving  and  excepting  the  corneal  opacity  only,  that 
being  so  situated  as  not  to  interfere  with  the  sight.  The  doctor  may 
now  be  examined  actually,  instead  of  hypothetically;  for  the  reason, 
as  above-stated,  that  he  now  is  "personally  acquainted  with  the  ma- 
terial facts  in  the  case.''^  He  may  be  asked,  for  instance:  "What 
did  you  find?"  Ans. — "I  found  on  the  left  side  an  eye  perfectly 
sound  in  every  way,  excepting  a  slight  scar  on  the  cornea."  "Where 
was  this  sear  situated  with  reference  to  the  pupil?"  "To  one  side  of 
it. "  " Does  it  interfere  with  the  sight ? "  " No. "  "Is  there  anything 
to  show  that  the  eye  may  not  have  perfect  vision  ? "    "  There  is  not. ' ' 

It  is  well  enough  to  note,  before  we  leave  the  subject  of  the  hypo- 
thetical question,  that  the  term  "hyiDothetical"  has  reference  to  the 
sense  and  not  to  the  mere  verbal  form.  What  is  really  necessary  is 
that  the  question  hypothecate,  i.  e.,  assume  for  the  time  being,  instead 
of  deciding,  the  truth  of  more  or  less  of  the  fact-testimony.  A  ques- 
tion may,  indeed,  be  cast  in  hypothetical  form  (see,  for  instance,  Fair- 
child  V.  Bascomb,  35  Vt.  415)  and  yet,  after  all,  be  of  such  a  nature 
as  to  require  the  expert,  should  he  respond,  to  decide  upon  the  truth 
of  the  evidence.  On  the  other  hand,  a  question  not  at  all  hypothet- 
ical, linguistically  considered,  may  yet  avoid  the  error  referred  to.^ 


1  Eogers  on  Expert  Testimony,  1891,  p.  75,  footnote  2. 
2Gilwan  v.   Town   of   Strafford,   50    Vt.  726. 

30 


OPHTHALMIC  JURISPRUDENCE 

The  test  is :  Does  the  question  require  the  expert  to  decide  upon  the 
truth  of  any  fact-testimony  (besides  that  given  by  himself,  of  course) 
and  thus  to  take  that  function  from  the  jury? 

A  subordinate,  yet  not  wholly  unimportant,  matter  is  that  of  the 
expert's  fees.  We  have  already  seen  that,  in  criminal  cases,  no  fee 
of  any  sort  need  ever  be  paid  or  tendered  to  render  valid  the  service 
of  the  subpoena,  while,  in  civil  cases,  the  mileage  and  per  diem  must 
always  be  paid,  or  tendered,  to  the  prospective  witness  (whether  ex- 
pert or  ordinary)  to  render  the  servic  of  the  subpoena  effective.  No 
payment  or  tender,  no  service.  Now,  in  the  case  of  the  ordinary  wit- 
ness, that  is  all  the  pay  there  is,  even  in  civil  cases.  At  least  it  is  all 
that  there  ever  should  be.  In  the  case  of  the  ordinary  witness,  any 
further  compensation  is  likely  to  get  him  into  trouble,  on  the  ground 
of  bribery,  or  even  perjury.  When,  however,  the  witness  is  sum- 
moned to  give,  not  ordinary  fact-testimony,  but  scientific  opinions  in- 
volving the  possession  of  learning  and  skill,  then  a  much-mooted 
question  very  naturally  arises.  Ought,  or  ought  not,  an  opinion  wit- 
ness, an  expert,  to  be  obliged  by  the  law  to  hold  his  store  of  knowledge 
free  for  the  use  of  all  who  take  it  into  their  heads  to  litigate?  To 
illustrate :  Here  is  a  civil  suit  against  a  railway  company,  brought  in 
the  Alexander  County,  Illinois,  circuit  court — a  case  which  requires 
for  its  proper  decision  a  certain  amount  of  expert  medical  knowledge 
and  skill.  An  oculist,  we  will  say,  is  subpoenaed  from  Chicago.  He 
is  obliged,  possibly,  to  come  in  person  to  Cairo,  to  lose  perhaps  sev- 
eral days  of  his  practice,  and  to  undergo  in  addition  various  sorts  of 
inconveniences.  He  has,  moreover,  to  "turn  himself  M^rong  side  out" 
for  the  benefit  of  people  whom  he  has  never  seen,  who  care  nothing 
for  him  or  his  interests,  and  who  are  striving,  the  one  side  to  get  money, 
the  other  side  to  keep  it ;  and  the  question  is.  Shall  he  do  all  this  for 
nothing,  or,  at  all  events,  what  is  practically  nothing — i.  e.,  his  mileage 
and  a  nominal  per  diem — not  quite  enough,  perhaps,  to  pay  his  actual 
expenses,  to  ignore  the  matter  of  his  loss  of  practice  in  Chicago  ?  The 
ablest  writers  answer  the  question  thus:  No,  he  ought  not;  the  ex- 
pert's learning  and  skill  are  his  property,  and  the  law  has  no  more 
right  to  compel  him  to  render  expert  testimony  against  his  will,  or  at 
least  without  adequate  compensation,  than  it  has  to  compel  him  to 
render  professional  services  of  any  other  sort.  However,  the  writers 
and  the  courts  are  very  much  at  variance,  and,  unfortunately  for  the 
expert,  the  courts  are  not  at  variance  with  each  other  on  this  question. 
They  hold,  with  very  unusual  unanimity,  that  the  expert,  medical  or 
lay,  may  be  compelled  to  testify  in  his  expert  capacity  without  other 
compensation  than  that  of  an  ordinary  witness.     The  court  of  last 

31 


OPHTHALMIC  JURISPRUDENCE 

resort  (Supreme  Court)  in  Indiana  has  indeed  held  to  the  contrary, 
but,  even  in  that  state,  the  decision  has  been  annulled  by  a  statute, 
while,  on  the  side  of  the  general  rule,  are  ranged  the  highest  courts  of 
Alabama,  Illinois,  Arkansas,  Colorado,  Texas,  Minnesota,  and  even  of 
still  other  states.  It  has  been  suggested  that  the  rule,  in  its  actual 
application,  works  no  injustice,  since,  in  no  case  whatever,  would 
counsel  be  willing  to  take  his  chances  with  a  medical  witness  angered 
by  the  non-paj'ment,  or  the  prospect  of  non-payment  of  extra  com- 
pensation. This  suggestion,  however,  amounts  simply  to  an  insinua- 
tion that  medical  experts  will,  as  a  rule,  in  case  they  receive  no  extra 
compensation,  be  willing  to  perjure  themselves — an  insinuation  which 
physicians,  naturally,  resent  most  bitterly.  Moreover,  in  many  cases, 
the  party  summoning  the  expert  is  a  pauper,  who,  of  course,  cannot 
pay  the  "extra  compensation"  in  advance,  and  who,  after  receiving  a 
judgment  for  say  ten  or  twenty  thousand  dollars,  divides  the  amount 
with  his  lawyer,  and  then,  knowing  that  the  law  allows  no  extra  com- 
pensation to  the  doctor,  says  to  the  medical  expert,  "For  you,  noth- 
ing. ' '  This  may  happen,  too,  after  the  doctor  has  made  most  arduous 
preparation  for  the  case — perhaps  quite  as  arduous  as  that  which  has 
been  made  by  the  lawyer  himself. 

However,  the  situation  as  a  whole  is  not  so  bad  as  the  judge-made 
law  would  seem  to  make  it.  In  several  states  statutes  provide  for  the 
payment  of  special  fees  to  experts.  Among  these  are:  Iowa,  Louis- 
iana, North  Carolina,  Rhode  Island,  and  Wyoming. 

In  any  case,  where  an  expert  accepts,  or  is  promised,  extra  compen- 
sation, the  retaining  or  receiving  of  this  extra  payment  should  never 
be  made  contingent  upon  the  success  of  the  side  in  whose  behalf  the 
physician  is  called  upon  to  testify.  Everything  should  be  strictly 
ethical  and  fair,  for  the  reason,  if  not  for  any  better  one,  that  the 
entire  matter  of  the  expert's  compensation  may  be  brought  out  fully 
before  the  court  in  his  cross-examination. 

Legal  consider  at  i&ns  regarding  ophthalniic  expert  testimony  in 
England.  In  England  the  law  relating  to  expert  witnesses  is  much 
the  same  as  in  America.  In  fact,  in  neither  of  these  lands  is  there 
anything  at  all  resembling  an  official  corps  of  medical  experts,  such  as, 
later,  we  shall  find  exists  in  Germany  and  France.^  Furtheiniiore,  as 
we  saw  some  distance  supra,  the  common  law  (decisions  of  courts  of 
last  resort)  in  America  has  a  certain  degree  of  persuasive  authority 
in  the  courts  of  England,  just  as  the  reverse  holds  true. 2  It  is,  then 
(partly,  no  doubt,  in  consequence  of  this  persuasive  authority)  a  fact 


1  But  not  Italy. 

2  American  cases  are  frequently  cited  in  English  text-books  and  vice  versa. 

32 


OPHTHALMIC  JURISPRUDENCE 

that  the  English  law  relating  to  expert  testimony  is  almost  identical 
with  the  law  on  the  same  subject  prevailing  in  America.  The  method 
of  securing  attendance  in  court,  the  rulings  with  regard  to  competency, 
the  procedure  relating  to  examinations  and  cross-examinations,  etc., 
etc. — these  and  various  other  affairs  relating  to  expert — as  well  as 
ordinary — witnesses,  are  managed  in  England  almost  the  same  as  in 
America.  Especially  worthy  of  notice  is  the  retention  in  the  mother 
country  of  the  old-time  rule  already  adverted  to  in  this  article  of 
excluding  the  testimony  of  physicians  from  the  list  of  matters  re- 
garded by  the  courts  as  "privileged."  Thus  The  Encyclopedia  of  the 
Laws  of  England:  ^  "The  statute  law  of  many  foreign  countries  en- 
forces this  obligation  [of  medical  secrecy]  by  penalties,  and  regards 
it  as  sacred  even  in  the  witness-box.  English  law,  however,  takes  a 
different  view,  and,  if  the  judge  sees  fit,  compels  a  medical  witness 
to  reveal  in  open  court  the  most  confidential  communications,  and  to 
disregard  the  most  solemn  promises."  In  England,  therefore,  the  law 
on  this  point  is  exactly  the  same  as  it  is  in  the  different  states  of  the 
United  States  (for  example,  Illinois)  where  the  matter  has  not  been 
changed  by  statute. 

Legal  considerations  regarding  ophthalmic  expert  testimony  in 
France.  The  medical  expert  system  of  France,  though  not  entirely 
transferrable  to  a  Common  Law  countrj^  like  ours,  is  nevertheless  so 
excellent  and  in  so  many  particulars,  and,  moreover,  spite  of  the  recent 
date  of  its  adoption,  has  worked  so  admirablj^,  that  we  take  great 
pleasure  in  presenting  it  here  with  just  a  suggestion  of  detail.^ 

We  shall  deal  with  the  subject  under  the  heads  of:  (1)  Appoint- 
ment of  medical  experts.  (2)  Procedure  of  medical  investigations  in 
civil  matters.  (3)  Procedure  of  medical  investigations  in  criminal 
matters.     (4)  Medical  expert  reports. 

Appointment  of  medical  experts. — At  the  commencement  of  each 
judicial  year,  and  in  the  three  months  following  the  opening  of  the 
court,  the  Court  of  Appeals,  sitting  in  council,  together  with  the  aid 
and  consent  of  the  procureur  general,  appoints  from  a  list  prepared 
(as  stated  heretofore)  by  the  civil  tribunals  of  first  instance  a  number 
of  physicians  on  whom  the  appeals  court  confers  the  title  of  "expert 
before  the  courts."    In  the  Court  of  Appeals  of  Paris,  the  appoint- 


1  1900-1909,  Vol.  9,  p.  126. 

2  I  am  informed  by  an  eminent  French  authority  that  perhaps  the  only  objee- 
tiou  which  could  properly  be  raised  to  the  French  expert  system  is  that  "experts 
are  not  always  appointed  with  a  great  deal  of  care. ' '  Thus,  for  example,  general 
practitioners  are  not  infrequently  assigned  to  duties  that  properly  belong  to  the 
field  of  specialism,  and  vice  versa.  Again:  "It  has  happened  that  the  court  in 
certain  instances  has  appointed  a  specialist  in  one  matter  as  expert  in  regard 
to  another  specialty." 

33 


OPHTHALMIC  JURISPRUDENCE 

ments  in  question  are  made  by  the  first  three  chambers  of  that 
tribunal. 

The  conditions  of  eligibility  to  appointment  by  any  Court  of  Appeals 
are :  1. — That  the  physician  be  of  French  nationality.^  2. — That  he 
have  his  legal  domicile  either  in  the  arrondissement  of  the  tribunal,  or, 
at  all  events,  within  the  territorial  jurisdiction  of  the  Court  of  Appeal 
by  which  he  is  appointed.  3. — That  he  shall  (a)  have  had  at  least  five 
years  of  the  actual  practice  of  his  profession,  or  (b)  be  furnished  with 
a  diploma  from  the  University  of  Paris  bearing  the  mention,  "Legal 
Medicine  and  Psychiatry,"  or  one  of  the  analogous  diplomas  con- 
ferred by  the  other  French  universities. 

Expert  investigations  and  examinations  may,  in  general,  be  con- 
ducted only  by  physicians  who  bear  this  title  of  "Expert  before  the 
Courts,"  and,  as  a  natural  consequence,  such  experts  appear  in  every 
class  of  cases  and  in  every  court,  even  the  Court  of  Cassation.  Ac- 
cording to  the  Code  of  Criminal  Procedure,^  however,  other  physi- 
cians may  be  appointed  in  cases  of  "flagrant  crime,  inquiries  ordered 
by  a  Court  of  Appeal,  or  measures  taken  by  the  president  of  a  Court 
of  Assizes  by  virtue  of  his  discretionary  power. ' '  Other  cases  in  which 
non-intitulated  experts  may  be  appointed  are :  When  the  experts 
properly  intitulated  by  the  Court  of  Appeals  are  for  good  reason  dis- 
qualified to  act  in  a  particular  case  (as  by  consanguinity,  affinity, 
personal  interest  in  the  suit,  etc.)  when  there  is  great  urgency,  and 
also  in  other  cases  by  reason  of  special  circumstances.  In  every  case, 
however,  of  such  anomalous  appointment,  the  order  of  appointment 
must  be  supported  by  a  written  statement  of  the  reasons  for  which  the 
anomalous  appointment  is  made.  Further,  even  in  the  case  of  anoma- 
lous appointments,  the  appointee  must  be  a  French  physician. 

The  experts  are  appointed  either  by  the  court  or  by  the  parties, 
sometimes  by  the  parties  and  the  court  acting  conjointly. 

The  foregoing  rules  relating  to  the  qualifications  and  the  appoint- 
ment of  medical  experts,  apply  indifferently  in  civil  and  in  criminal 
matters.  The  procedure,  however,  according  to  which  expert  investi- 
gations are  conducted,  differ  somewhat  in  the  two  classes  of  cases. 

Procedure  of  medical  investigations  in  civil  matters.^ — 1. — The  ex- 
pert, or  experts,  whether  appointed  by  the  courts  or  chosen  by  the 

1  The  law  on  this  point  is  very  explicit  and  positive :  ' '  Les  f onctions  de 
medeeins  experts  pres  les  tribunaux  ne  peuvent  etre  remplie  que  par  des  docteurs 
en  medecine  fran^ais. ' ' — L  'article  14,  Sec.  1  er  de  la  loi  du  30  Novembre  1892. 

The  German  law  is  by  no  means  so  particular. 

2  Code  d  'instruction  criminelle,  articles  43,  44,  235,  et  268. 

3  These  rules,  somewhat  abridged  and  otherwise  modified,  are  taken  from 
Simon-Auteroche,  "Manuel  Pratique  de  Droit  Medical,"  Paris,  1908,  pp.  108-112, 

34 


OPHTHALMIC  JURISPRUDENCE 

parties,  are  not  obliged  to  accept  either  the  appointment  or  the  choice/ 
but,  the  mission  once  accepted,  its  duties  are  obligatory  and  must  be 
completely  performed.  If  they  are  not  fulfilled  completely,  the  expert 
is  obliged  to  defray  all  frustratory  expenses,  and  also  to  pay  (some- 
times very  heavy)  damages. 

2. — Expert  witnesses,  like  common  witnesses,  may  be  challenged  on 
grounds  of  relationship,  affinity,  etc. 

3. — Experts  must  take  a  certain  oath,  not  necessary  here  to  be 
specified. 

4. — Expert  investigations  must  be  conducted  (when  it  is  proper 
so  to  do)  in  the  presence  of  the  interested  parties  or  those  who  law- 
fully represent  them.  For  reasons  of  expediency,  however,  the  pres- 
ence of  the  parties  may  be  dispensed  with.  But  even  then,  the  parties 
should  have  a  chance  to  be  represented  by  a  physician,  or  physicians, 
of  their  choice. 

5. — If  several  experts  be  chosen  or  appointed,  they  should  construct 
but  one  single  report.  In  case  there  should  arise  a  diversity  of  opin- 
ions among  the  several  experts,  all  the  different  opinions  may  be  stated 
in  detail,  but  no  particular  opinion  may  be  attributed  to  any  particular 
expert.  All  the  different  opinions  must  proceed  from  the  board  of 
experts  as  a  whole. 

Procedure  of  medical  investigation  in  criminal  matters. — 1. — Medi- 
cal experts,  in  criminal  matters,  are  not  invariably  at  liberty  to  reject 
an  appointment  by  the  court.    They  may  do  so  only  in  certain  cases. 

2. — An  expert  may  be  successfully  challenged,  in  criminal  mat- 
ters, much  more  readily  than  in  civil  affairs.  ' '  There  must  not  be  the 
least  suspicion  of  prejudice  or  partiality,  even  involuntary. ' ' 

3. — It  is  not  at  all  necessary  that  the  operations  of  the  experts  be 
conducted  in  the  presence  of  the  parties  or  of  those  who  legally  repre- 
sent them. 

4. — The  report  of  the  experts  may,  if  expedient,  be  verbal.  (It  may 
not,  under  any  circumstances,  be  verbal  in  a  civil  suit.) 

5. — Medical  experts  must  invariably  be  placed  under  oath  both  be- 
fore commencing  their  investigations  and,  once  more,  before  they 
testify  in  court. 

Reports. — Expert  reports,  according  to  Simon-Auteroche,^  are  com- 
posed of  four  essential  parts: 


1  In  Germany  precisely  the  contrary  condition  prevails.  In  that  country  not 
merely  an  official  physician,  but  every  physician,  so  long  as  he  remains  in  public 
practice,  is  obliged,  on  the  suggestion  of  the  proper  authority,  to  act  as  expert 
either  in  civil  or  in  criminal  matters — unless  indeed  he  can  furnish  an  acceptable 


excuse. 

2Loc.  cit.,  p.  112. 

35 


OPHTHALMIC  JURISPRUDENCE 

1. — Preamble  (reciting  the  names  of  the  experts,  the  order  of  the 
court  by  virtue  of  which  the  investigation  Avas  made,  etc.). 

2. — Statement  of  the  facts. 

3. — Discussion. 

4. — Conclusions.  ^ 

Legal  considerations  regarding  ophthalmic  expert  testimony  in 
Germany.  In  Germany,  too,  as  well  as  in  France,  there  exists  a  corps 
of  official  expert  witnesses.  In  Germany,  however,  the  system  is,  in  a 
manner  of  speaking,  a  "blend"  of  the  French  and  the  Common  Law 
systems ;  that  is  to  say,  although  there  exists  in  Germany  a  corps  of 
official  experts,  yet  these  do  not  so  uniformly  appear  before  the  courts — 
i.  e.,  to  the  almost  total  exclusion  of  non-official  experts — as  is  the  case 
in  France.  In  Germany  the  parties  have  a  right  to  propose  and  even 
to  demand  the  summoning  of  non-official  experts  of  their  own  naming, 
and,  indeed,  in  civil  cases,  they  may  bring  their  own  physicians  with 
them,  without  so  much  as  having  made  the  slightest  preliminary  sug- 
gestion to  the  court. 

The  power  to  regulate  medical  affairs  resides,  in  Germany,  in  the 
first  instance,  with  the  imperial  authority,  but  these  matters  have,  for 
the  most  part,  been  delegated  to  the  separate  Bundesstaaten,  so  that, 
in  the  different  Confederated  States,  there  obtain  somewhat  different 
systems  of  medical  experts.  However,  to  take  the  organization  of  the 
Prussian  experts  for  an  example:  The  head  of  the  corps  is  the 
"Minister  der  geistlichen  Unterrichts-  und  Medizinal-Angelegen- 
heiten."  Under  this  official  functionates  an  "Abteilung  fiir  die  Med- 
izinalangelegenheiten, "  a  branch  of  which  is  the  "Wissensehaftliche 
Deputation  fiir  das  Medizinalwesen,"  the  highest  consulting  class. 
Each  province  has  its  "  Provineial-Medizinal-Kollegium, "  each  county 
its  "Kreisarzte. " 

The  members  of  this  official  medical  corps  take  on  the  duties  of 
expert  witnesses  only  when  called  upon  by  the  police  or  the  State's 
Attorney  {Staatsanwalt) . 

In  addition  to  the  system  above  mentioned,  there  are  in  some  of 
the  larger  cities  of  Prussia  the  so-called  Gerichtsdrzte,  or  (law)  Court 
Physicians. 

All  the  official  physicians  in  all  the  confederated  states  are  appointed 
by  the  Minister  for  Medical  Affairs  {Medizinal  Angelegenheiten)  in 
no  ease  being  elected,  or  even  proposed,  by  the  public.    The  tenure  is 


1  We  do  not  enter  here  into  the  question  of  privilege  or  non-privilege  with 
respect  to  medical  testimony  in  France.  The  subject  is  extensive,  and  may  be 
found  fully  treated  (if  not  absolutely  up  to  date)  in  Brouardel's  " Le  secret 
medical,"  Paris,  1893. 

36 


OPHTHALMIC  JURISPRUDENCE 

for  life,  and  all  receive  a  yearly  salary  (Jahresgehalt) .  Some  of  the 
officials  are  allowed  to  engage  in  private  practice. 

An  appeal  lies  from  the  report  of  a  Kreisarzt  or  a  Gerichtsarzt  to 
the  Provinzial-Medizinalkollegium,  and,  still  further,  to  the  "Wissen- 
schafUiche  Deputation,"  this  last-mentioned  body  being  the  highest 
consulting  class,  or,  as  it  were,  supreme  court,  for  medical  expert 
matters  in  Prussia.  This,  however,  does  not  mean  that  the  Kreisdrzte 
(county  physicians)  and  the  Gerichtsdrzte  (city  court-physicians) 
are  limited  to  the  giving  of  testimony  in  the  inferior  courts,  such  as 
the  Amtsgerichte,  the  Schoffengerichte,  and  the  Landgerichte.  They, 
in  fact,  may  testify  as  official  expert  physicians  in  the  Oherlandes- 
gerichte  (which  they  do  quite  often)  and  even  in  the  Reichs- 
gericht  itself  (though,  of  course,  not  so  frequently).  The  Provinzial- 
Medicinalkollegkom  may  be  appealed  to  in  a  Schivurgericht  (in  im- 
portant criminal  matters  only)  in  an  Oherlandesgericht,  and  in  the 
Reichsgericht;  but  never  except  when  first  the  Kreisdrzte  (or  Ger- 
ichtsdrzte) have  already  been  heard  in  the  same  court.  Similarly, 
when  the  Provinzial-Medizinalkollegimn  has  been  listened  to  (in  any 
of  the  same  three  higher  courts)  an  appeal  may  be  taken  on  the  medi- 
cal questions  involved  to  the  Wissenschaftliche  Deputation.  The  par- 
ties themselves  may  propose  these  medical  appeals,  but  have  no  right 
to  demand  them.    The  right  of  decision  belongs  to  the  court  itself. 

Numerous  forms  are  furnished  and  directions  given  for  the  con- 
struction of  medical  expert  reports.  Non-official  experts  are  bound  to 
follow  the  forms  in  certain  matters  only,  while  the  official  experts 
are  obliged  to  make  use  of  them  in  practically  every  sort  and  kind 
of  case.i 

The  experts  of  first  instance  for  any  individual  case,  (other  than 
the  Kreisdrzte  and  Gerichtsdrzte,  who,  of  course,  act  by  virtue  of  their 
office)  are  generally  appointed  by  the  court.  The  appointees,  however, 
can,  for  cause,  be  challenged  by  the  accused,  the  complaining  witness, 
the  prosecuting  attorney,  and,  in  civil  cases,  by  the  plaintiff  or  the 
defendant.  So,  sometimes,  may  even  the  official  physicians  be  chal- 
lenged. In  criminal  cases  the  parties  may  propose,  and  even  demand, 
the  calling  of  non-official  experts  by  the  courts,  while,  in  civil  suits,  the 


1  Eapmund  and  Dietrich  recommend  to  non-official  experts  the  following  of 
official  forms  in  every  case.  "Arztliche  BecMs-  u.  Gesetshunde,"  Leipzig,  1899, 
p.  462. 

By  the  way,  those  who  desire  to  behold  a  combination  of  Teutonic  scientific  and 
legislative  thoroughness  in  one  single  documentary  masterpiece,  are  referred  to  the 
Prussian  " Begulativ  vom  14  Februar,  1875"  (concerning  the  manner  of  perform- 
ing obductions  and  constructing  reports  upon  the  findings)  contained  in  the  work 
of  Eapmund-Dietrich  just  mentioned,  p.   475   ff. 

37 


OPHTHALMIC  JURISPRUDENCE 

parties  may,  as  already  stated,  bring  their  own  experts  with  them,  just 
as  is  done  in  this  country. 

Contrary  to  the  rule  in  France,  it  is  quite  permissible  to  allow  a 
foreign  physician  to  testify  as  expert,  even  though  he  had  never 
qualified  as  physician  under  German  law.  The  matter  lies  wholly 
within  the  discretion  of  the  trial  court. 

A  report  by  a  physician,  or  by  physicians,  of  the  first  instance,  is 
called  ein  Gutachten.  One,  however,  that  is  made  by  either  of  the 
medical  appeal  bodies,  is  called  ein  Ohergutachten. 

In  connection  with  the  subject  of  expert  testimony,  it  is  worth  while 
to  note  that,  in  Germany,  professional  secrecy  is  very  rigidly  enforced. 
Thus  the  Penal  Code  (Strafgesetzhuch) ,  sec.  300:  ".  .  .  Physi- 
cians, surgeons,  midwives,  pharmacists,  and  any  assistants  of  any  such 
persons,  shall,  in  case  without  authority  they  reveal  private  matters, 
which  have  been  entrusted  to  them  in  consequence  of  their  callings, 
be  punished  by  a  fine  not  to  exceed  1,500  marks  or  by  a  jail  imprison- 
ment not  to  exceed  three  months. ' ' 

However,  in  a  court  of  law,  professional  secrets  are,  of  course, 
legally  divulgeable  up  to  a  certain  extent.  To  exactly  what  extent, 
the  law  is  very  specific  in  many  respects,  though  not  all,  laying  down 
various  regulations  regarding  non-official  and  official  experts  and  also 
others  as  to  official  experts  after  these  have  ceased  to  occupy  their 
official  positions.^ 

In  general,  a  witness  is  neither  punishable  criminally  nor  responsible 
in  a  civil  suit  for  damages  on  account  of  any  testimony  which  he  may 
have  given  (veraciously,  of  course)  on  the  request  or  demand  of  a  court 
of  proper  jurisdiction. 

Legal  considerations  regarding  ophthalmic  expert  testimony  in  Italy. 
In  Italy  there  is  no  corps  of  ' '  experts  before  the  courts. ' '  Any  physi- 
cian practising  in  Italy  may  be  cited  to  appear  and  serve  as  an  expert.^ 

It  is,  however,  absolutely  necessary  that  a  man,  in  order  to  be  com- 
petent as  an  expert,  should  be  a  licensed  physician.  He  is  not,  never- 
theless, required  to  be  in  active  practice  at  the  time  of  acting  in  his 
expert  capacity. 


1  Thus,  for  instance,  the  Code  of  Civil  Procedure  (Civil-prosessordnung) 
Sec.  376:  "Oeffentliche  Beamte,  auch  wenn  sie  nicht  mehr  im  Dienste  sind^ 
diirfen  iiber  TJmstande,  auf  welche  sich  ihre  Pflicht  sur  Amtsverschwiegenheit 
iesieht,  als  seugen  nur  mit  GeneJimigung  ihrer  vorgesetzten  Dienstbehorde  oder 
der  ihnen  zuletzt  vorgesetzt  geicesenen  Dienstbehorde  vernommen  werden." 
The  Code  of  Criminal  Procedure  (Strafprozcssordnung)  Sec.  53,  holds  precisely 
the  same  language. 

2  There  is,  to  be  sure,  a  corps  of  sanitary  physicians  grouped  in  a  kind  of 
hierarchy,  as  in  Germany;  but  this  is  an  altogether  different  affair  from  a  corps 
"of  experts  before  the  courts."  This  sanitary  corps  will  be  treated  under  the 
heading  of  Ophihalmo-Sanitary  Legislation  in  Italy. 

38 


OPHTHALMIC  JURISPRUDENCE 

In  damage  suits,  based  on  injury  to  special  organs,  the  expert  wit- 
ness need  not  be  a  specialist  in  diseases  of  the  organs  concerned ;  nor  is 
there  any  law  forbidding  a  specialist  who  practises  only  a  specialty,  to 
render  expert  testimony  outside  his  particular  field. 

A  related  matter  is  that  an  expert  witness  of  one  school  of  practice 
is  allowed  to  testify  in  a  suit  for  malpractice  against  a  physician  of 
another  school.^ 

In  criminal  cases  the  number  of  experts  is,  as  a  rule,  two;  in  civil 
eases,  however,  either  three  or  one.  In  criminal  cases  the  experts  are 
appointed  by  the  court  (though  the  appointees  may  for  just  cause  be 
challenged)  ;  in  civil  cases  the  parties  agree  upon  their  experts,  or,  in 
case  of  their  inability  to  agree,  the  experts  are  selected  by  the  courts. 

All  experts  selected  by  the  courts  are  paid  from  the  public  treasury. 
Those  selected  by  the  parties  are  compensated  by  the  parties,  except 
where  one  or  more  of  the  parties  are  indigent — then  the  public  treasury 
is  once  more  called  into  requisition. 

We  may  add,  finally,  that,  in  criminal  cases,  the  court  has  power 
not  only  to  compel  the  experts  to  attend  and  deliver  testimony,  but  also 
to  prepare  themselves  therefor  by  laborious  investigations.- 
B. — Surgical  Considerations  liegarding  Ophthalmic  Expert  Testimony. 

The  surgical  side  of  the  subject  of  expert  testimony  relates  (so  far 
as  concerns  the  purposes  of  this  article)  to  the  following  matters: 
The  commonest  injuries  with  which  the  ophthalmo-surgical  expert 
witness  has  to  deal;  simulation  and  the  tests  therefor;  the  false 
attribution  of  injuries  and  diseases  and  the  tests  for  that  subtle  form 
of  falsification ;  exaggeration  and  the  tests  for  that ;  dissimulation  and 
cautions;  visual  economics;  questions  of  a  general  nature  relating  to 
the  power  of  vision  and  the  condition  of  the  eye  after  death  and  during 
sleep ;  the  ocular  signs  of  poisoning,  burning,  etc. ;  and,  finally,  the 
ocular  indications  of  identity. 

The  commonest  injuries  with  which  the  ophthalmic  expert  has  to 
deal.^  Injuries  of  the  sort  in  question  are:  Wounds  and  burns  of 
the  ocular  adnexa   (the  eyebrows,  the  eyelids,  and  the  extra-bulbar 


1  As  before  mentioned,  only  in  the  United  States  is  it  forbidden  that  an  expert 
of  one  school  shall  testify  in  a  suit  for  malpractice  against  a  physician  of  any 
other  school.  Surely  in  this  particular  the  law  of  the  United  States  is  very  much 
in  advance  of  that  of  any  other  nation. 

2  In  the  United  States  a  physician  can  be  required  to  attend  a  trial  and  to 
give  impromptu  answers  both  in  civil  and  in  criminal  cases.  He  cannot,  however, 
in  either  class  of  cases,  be  required,  against  his  will,  to  make  any  sort  or  kind  of 
preparation  for  the  giving  of  his  testimony. 

3  For  a  very  complete  discussion  of  ocular  injuries  in  their  strictly  scientific 
(as  well  as  to  some  extent  in  their  medico-legal)  aspects,  the  reader  is  referred  to 
Harry  V.  Wiirdemann 's  "Injuries  of  the  Eye,"  also  to  the  indispensable  works 
of  A.  Maitland  Eamsay ;  further,  to  the  appropriate  headings  in  this  Encyclopedia. 

39 


OPHTHALMIC  JURISPRDDENCE 

contents  of  the  orbit)  ;  wounds  and  burns  of  the  ocular  conjunctiva, 
the  cornea,  and  the  sclera;  and,  lastly,  wounds  of  the  deeper  portions 
of  the  eye. 

Wounds  of  the  eyebrow  are  generally  very  simple  and  altogether 
harmless,  directly  and  indirectly.  There  is  swelling,  perhaps,  and 
ecchymosis,  and  a  little  throbbing  pain.  Resolution,  as  a  rule,  ia 
prompt.  Sometimes,  however,  instead  of  resolution,  there  follow 
periostitis,  suppuration,  and  necrosis.  Also,  the  outer  wall  of  the 
frontal  sinus  may  be  crushed  in,  with  resulting  chronic  empyerna  of 
that  cavity.  The  supra-orbital  nerve  may  be  injured  in  such  manner 
that  the  traumatism  is  followed,  after  a  time,  by  persistent  neuralgia. 
This  is  generally  when  the  nerve  is  incarcerated  in  an  adherent 
cicatrix. 

It  is  now  and  then  important  to  differentiate  between  contused 
wounds  of  the  eyebrow  and  incised  wounds  of  the  same  part.  Such 
a  distinction  would,  at  first  thought,  seem  sufficiently  easy  in  almost 
every  instance ;  yet,  as  a  matter  of  practice,  this  is  not  at  all  the  case, 
for  contused  wounds  of  soft  parts  which  are  underlaid  by  prominent 
bony  ridges  have  a  way  of  looking  almost  precisely  as  if  they  had  been 
occasioned  by  an  instrument  possessed  of  a  cutting  edge.  Thus,  I  have 
seen  a  case  where  a  man  had  had  his  eyebrow  split  by  a  blow  of  a  fist 
almost  as  cleanly  as  if  the  injury  had  been  produced  by  a  knife ;  yet  I 
myself  had  seen  the  blow  delivered,  and  was  certain  that  nothing  but 
the  naked  fist  had  been  employed.^ 

The  distinction  between  the  apparently  incised,  but  really  contused, 
wound  of  an  eyebrow,  and  an  incised  wound  of  the  same  part,  is 
made  by  four  indications:  First,  the  wound  which  is  really  contused 
is  more  likely  to  possess  an  areola  of  ecchymosis.  Second,  under  a 
lens,  the  walls  of  a  contused  wound  are  seen  to  be  not  actually  smooth, 
but  more  or  less  ragged.  Third,  while  an  incised  wound  shows  all 
the  tissues  divided  just  as  deeply  down  as  the  wound  reaches,  a  con- 
tused wound  simulating  an  incised  wound,  shows  some  of  the  more 
resisting  tissues,  or  fibres,  undivided,  while  others,  deeper  down  in 
the  wound,  are  severed.  Fourth,  the  really  contused,  though  appar- 
ently incised,  wound  is  generally  more  extensive  (longer)  at  the  bot- 
tom than  at  the  surface,  while  the  really  incised  wound  is  apt  to 
possess  a  so-called  ' '  tail ' '  both  at  the  beginning  and  the  end — in  other 
words,  to  be  of  greater  extent  in  the  skin  than  in  the  deeper  tissues. 
This  distinction  is  due  to  the  fact  that,  in  the  really  incised  wound,  the 


1 1  have  also  seen  an  elbow  split  by  a  pair  of  brass  knucks  so  cleanly  that, 
without  the  carefullest  examination,  one  would  almost  be  willing  to  swear  that  the 
wound  had  been  made  by  the  sharpest  of  knives. 

40 


OPHTHALMIC  JURISPRUDENCE 

inflicting  instrument  cuts  from  without  inward,  whereas,  in  the  case 
of  a  wound  of  the  contused  variety,  the  incising  instrument — the  bone 
— cuts  from  within  outward. 

This  distinction  is  often  important,  as,  on  the  expert's  ability  to 
make  it,  not  infrequently,  at  the  preliminary  trial,  hinges  the  question 
whether  a  defendant  is  to  be  held  for  assault  with  intent  to  kill,  or 
only  charged  with  simple  assault  and  battery.  Later,  the  distinction 
and  the  expert's  ability  to  make  it,  may  mean  to  the  accused  the  differ- 
ence between  the  penitentiary  and  freedom. 

The  distinction  above  mentioned  is  similar  to  that  (which  is  also 
very  important)  obtaining  between  an  incised  wound  about  the  body 
almost  anywhere  and  a  wound  produced  artificially  (artefact)  by  the 
lifting  and  carrying  of  a  body  which  has  been  severely  burned,  or 
cooked.  A  burned  body  is  found,  perhaps  in  the  ashes  of  what  was 
once  a  house.  Certain  solutions  of  continuity  appear  in  divers  places 
about  this  body,  suggesting  the  inquiry  whether  a  murder  has  not  been 
committed  and  then  the  house  set  fire  to,  in  order,  by  incinerating  the 
body,  to  cover  the  traces  of  the  crime.  On  the  other  hand,  the  question 
arises  whether  the  fissures,  or  apparent  incisions,  may  not  have  been 
produced  in  the  easily  parted  tissues  by  the  lifting  and  carrying  of  the 
body  from  the  site  of  the  burning.  Now,  when  a  deep  fissure  is  pro- 
duced in  burned  tissues  by  the  lifting  and  carrying  of  the  body,  there 
will  often  be  fibers,  high  up  in  the  fissure,  which  have  not  parted.  Thus 
is  easily  and  certainly  established  the  fact  that  no  incised  wound  had 
been  inflicted  before  the  body  was  burned;  for,  in  case  of  a  wound 
by  a  cutting  instrument,  all  the  tissues  would  be  divided  down  to  the 
very  bottom  of  the  incision. 

Sometimes  an  injury  to  the  eyebrow  is  complicated  by  suppuration 
of  the  orbital  connective  tissue  (orbital  abscess)  and  even  though  this 
abscess  be  properly  evacuated,  and  the  prospect  of  recovery  is,  for  a 
time,  apparently  good,  total  loss  of  sight  may  nevertheless  follow  later, 
by  reason  of  the  cicatricial  tissue  formed  in  the  suppurating  cavity 
slowly  contracting  around  the  retro-bulbar  portion  of  the  optic  nerve. 

Fracture,  direct  or  indirect,  of  the  optic  foramen  is  a  not  very 
infrequent  accompaniment  of  severe  contusions  in  the  superciliary 
region ;  and,  in  such  cases,  a  retro-bulbar  neuritis  (often  of  very  slow 
onset)  may  develop,  with  the  production  of  blindness  more  or  less 
complete  and  absolutely  hopeless.  Secondary  retro-bulbar  neuritis  may 
also  occur  in  consequence  of  various  effusions  or  of  the  pressure  from 
callosities  which,  in  their  turn,  have  been  produced  by  periostitis. 

Fracture  of  the  base  of  the  skull,  with  meningitis  and  death  can 
also  occur  as  a  complication  of  contusions  of  the  eyebrow. 

41 


OPHTHALMIC  JURISPRUDENCE 

From  all  the  above-mentioned  considerations  it  appears  that  the 
ophthalmo-surgical  expert  should  be  extremely  cautious  when  setting 
forth  the  ultimate  prognosis  of  injuries  to  the  eyebrow. 

Burns  of  the  eyebrow  are  generally  not  important.  If  other  ocu- 
lar structures  are  involved,  the  fact  is  sufficiently  patent.  It  is  often  the 
case,  however,  that  cicatricial  contraction  follows  in  the  wake  of  super- 
ciliary burns,  with  consequent  great  disfigurement. 

Wounds  of  the  eyelids,  without  the  involvement  of  deeper  struc- 
tures, are  generally  unimportant,^  and,  owing  to  the  carefully  protected 
situation  of  the  eyes,  are  not  common.  The  danger  is  that  deeper 
structures  may  be  involved.  Infection,  also,  may  turn  an  apparently 
trivial  trauma  of  the  eyelid  into  a  matter  of  life  and  death,  in  conse- 
quence of  the  resulting  erysipelas,  lock-jaw,  etc.  Further,  a  wound 
which,  on  any  other  account,  would  be  sufficiently  trivial,  may  prove 
serious  indeed  if  the  lacrimal  canaliculus  be  involved,  because,  by 
obstruction  of  this  passage  through  the  formation  of  cicatricial  tissue, 
epiphora  (or  running  of  the  tears  down  onto  the  cheek,  instead  of 
through  the  lacrimal  passages  into  the  nose)  is  produced,  and  much 
consequent  interference  with  vision,  on  account  of  the  continual  pres- 
ence of  tears  on  the  front  of  the  eyeball.  Sometimes,  too,  a  trauma- 
tism of  the  eyelid  gives  rise,  through  closure  of  the  ducts  of  some  of 
the  Meibomian  glands,  to  Meibomian  cysts;  but  these  are  compara- 
tively harmless  and  are  very  easily  remedied. 

Burns  of  the  eyelids  are  much  more  serious  than  uninfected  eye- 
lid wounds,  because,  after  burns,  cicatricial  contraction  may  so  distort 
the  lids  that  they  no  longer  fulfill  the  important  offices  for  which  they 
were  provided.  Thus,  after  a  mine  explosion,  in  which  the  outer  sur- 
faces of  the  lids  were  deeply  burned  by  the  flaming  gas,  I  have  over 
and  over  beheld  almost  incredible  distortion  of  the  lids,  with  ulcerating 
eornea3  (due  to  the  lagophthalmos)  and  blindness.  Often  plastic  op- 
erations can  advantageously  be  performed  in  these  cases;  oftener,  how- 
ever, operation  is  refused,  and  the  mining  company  is  likely  to  be  held 
responsible  for  the  blindness  that  follows  in  consequence  of  the  refusal. 
The  various  entropium  and  ectropium  operations  often  find  a  place,  of 
course,  after  eyelid  burns,  as  well  as  electrolysis  for  distorted  eyelashes 
(traumatic  trichiasis). 

Injuries  to  the  extrdbnlbar  contents  of  the  orbit,  without  a  com- 
plicating injury  of  the  eyeball  itself,  are  quite  rare,  and  yet  they  do 
occur.    Thus,  I  have  taken  from  the  orbital  fat  a  peach-tree  twig  two 


1  Pliny  {Nat.  Hist.,  Book  XI,  Chap.  57)  declares  that,  when  an  eyelid  has  been 
severed  by  a  wound,  it  will  not  re-unite — a  great  mistake,  of  course.  However, 
I  have  heard  the  same  remark  made  by  an  Illinois  physician  in  good  standing. 

42 


OPHTHALMIC  JURISPRUDENCE 

inches  long ;  in  another  case,  a  sliver  of  glass ;  and,  in  still  another  in- 
stance, a  short  ball  from  a  22  caliber  cartridge,  without  in  any  of  these 
cases  the  eyeball  being  injured.  Various  disturbances  of  the  ocular 
motility  can  be  occasioned  by  injuries  of  the  extrinsic  muscles,  these 
amounting  at  times  to  complete  solution  in  the  continuity  of  one  or 
more  of  these  contractile  structures.  Orbital  abscess  is  not  infrequent 
as  a  result  of  extrabulbar  orbital  injuries,  especially  when  these  are 
complicated  by  the  presence  of  foreign  bodies.  The  great  danger,  of 
course,  in  such  cases,  is  to  the  optic  nerve,  which,  by  reason  of  cica- 
tricial contraction  taking  place  around  it,  is  prone  to  undergo  atrophy. 
Disturbances  in  the  motility  of  the  eye  may  also  be  occasioned  by 
cicatricial  contraction  in  the  neighborhood  of  the  various  muscles,  or,  at 
an  earlier  stage,  by  sloughing  of  the  muscular  tissues  themselves.  Sup- 
purative meningitis  is  also  a  possible  consequence,  or  complication,  of 
orbital  abscess. 

Wounds,  with  or  without  remaining  foreign  hodies,  and  hums  of 
the  conjunctiva,  the  sclera  and  the  cornea  are  among  the  commonest 
of  injuries,  and  are  not  infrequently  the  ground  of  hard-fought  litiga- 
tion. An  incandescent  particle  of  iron  will  often  inflict  a  wound,  pro- 
duce a  burn  and  leave  at  the  place  of  injury  a  foreign  substance,  all  at 
the  same  coup.  JMany  foreign  bodies  are  expelled  by  the  various  pro- 
visions of  nature  looking  to  this  end,  while  others  are  removed  (some- 
times unfortunately  so,  by  reason  of  the  infection  introduced)  through 
the  instrumentality  of  fellow  workmen.  A  fellow  workman,  in  fact, 
sometimes  employs  his  tongue  as  the  removing  instrument !  Sometimes 
an  eye  is  struck  by  a  foreign  body,  which  then  rebounds  away  from  the 
eye,  leaving,  however,  a  contusion  of  the  cornea  (with  or  without  in- 
fection) and  then  an  ulcer  follows.  The  workman,  in  such  cases,  can 
hardly -be  convinced  that  "there  is  nothing  in  his  eye."  He  has 
so  often  had  a  foreign  body  picked  from  his  cornea,  that  he  has  come 
to  believe  that  a  foreign  body  of  some  kind,  must,  as  a  matter  of 
course,  be  present  whenever  his  eye  is  injured.  Should  the  eye  be  lost, 
or  suffer  a  material  diminution  of  its  vision,  the  patient's  animosity,  as 
well  as  his  attempts  at  legal  redress,  are  more  likely  to  be  directed  to- 
ward the  surgeon  than  toward  the  employing  company.^  Burns  of  the 
conjunctiva,  sclera,  and  cornea  are  usudlly  complicated  by  similar  con- 
ditions of  the  lid.  They  are  oftenest  produced  by  steam  or  burning  gas, 
but  now  and  then  take  their  origin  from  the  action  of  chemical  agents 


1  Much  depends  on  the  state  of  the  doctor 's  finances.  Experience  shows  that 
the  number  of  suits  for  malpractice  which  any  physician  is  likely  to  be  subjected 
to  bears  a  direct  proportion  to  his  financial  standing.  "Where  the  honey  is,  there 
will  the  flies  be  also, ' '  is  true  here  as  elsewhere. 

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OPHTHALMIO  JURISPRUDENCE 

(the  various  caustic  acids  and  alkalies)  as  well  as  from  heated  pitch, 
water,  wax,  oil,  and  molten  or  solid  metals,  including  such  explosives  as 
fulminate  of  silver  or  mercury,  used  in  percussion  caps  and  boys'  tor- 
pedoes. They  are  nearly  always  of  serious  prognosis,  being  in  many 
instances  followed  promptly  by  perforation  of  the  globe.  Burns  by 
acids  and  alkalies  (oftenest  quick-lime)  are  likely  to  be  not  only  deep 
but  also  complicated  by  extensive  adhesions  between  the  lids  and  the 
ball  (ankyloblepharon,  symblepharon,  etc.).  In  many  of  the  cases  the 
surgeon  can  afford  but  little  assistance.  It  should  be  recalled,  to  be 
sure,  that  partial  symblepharon  is  easily  cured  by  a  simple  operation. 
I  have  seen  some  cases  of  ocular  burns  that  promised  to  be  of  the 
greatest  severity,  but  which,  nevertheless,  gave  very  good  results. 
Such  was  a  case  in  which  a  man  had  filled  a  large  hole  in  a  base-stone 
with  melted  solder,  and  then,  into  this  molten  metal,  had  tried  to  set 
the  lower  end  of  a  cold  iron  pillar.  He  was  stooping  close  down  over 
the  stone,  guiding  the  pillar  with  his  hands  into  the  solder-filled  socket, 
when,  just  as  the  iron  touched  the  hot  solder,  the  metal  splashed  up 
and  into  his  right  eye.  When  he  came  to  me,  he  seemed  to  be  wearing 
a  metal  mask  over  the  right  eyeball.  This  curved  plate  of  metal  I  had 
no  difficulty  in  releasing  from  the  conjunctival  cul-de-sac,  and  then,  be- 
hold an  eyeball  perfectly  unharmed,  except  for  a  trifling  hyperemia ! 
The  workman  informed  me  that  he  had  been  the  subject  of  this  identical 
accident  before,  without  receiving  the  slightest  harm,  and  a  few 
months  later,  he  came  to  my.  office  again  with  a  similar  mask  of  solder 
before  the  same  identical  eye.  Once  more  I  removed  the  metal  plate, 
and  once  again,  I  found  an  uninjured  eye.^  Red  pepper,  too  (so  often 
thrown  into  the  eyes  on  purpose)  though  it  causes  most  atrocious  pain, 
is  seldom  followed  by  any  serious  permanent  injury. 

Such  exceptional  matters  aside,  however,  the  prognosis  in  burns 
of  the  surface  of  the  eye  is  always  very  grave,  and  a  final  opinion 
should  never  be  passed  till  the  lapse  of  several  months.  Especially 
after  the  action  of  quick-lime  or  fresh  mortar,  and  the  fulminates  of 
silver  and  mercury,  should  the  prognosis  be  extremely  guarded. 

The  iris  is  not  infrequently  involved  in  wounds  of  the  eye,  whether 
the  ocular  coats  have  or  have  not  been  opened.  In  severe  contusions 
(produced,  for  instance,  by  a  blow  of  the  fist,  or  a  hard  snow-ball)  the 
iris  is  now  and  then  detached  at  its  circumference  more  or  less  com- 
pletely. An  incomplete  detachment  is  known  as  irido dialysis;  a  com- 
plete one,  as  irideremia,  or  traumatic  aniridia.    Detachment  is  much 


1  Noyes.  Diseases  of  the  Eye,  1894,  p.  288:  "Burns  by  melted  metal  are  often 
less  severe  than  those  due  to  lime,  because  when  the  metal  cools  it  is  taken  out  as 
a  cup,  and  there  is  no  continuously  destructive  chemical  action. ' ' 

44 


OPHTHALMIC  JURISPRUDENCE 

more  likely  to  occur  in  the  case  of  irides  already  adherent  to  the  lens,  or 
the  subject  of  inflammation  at  the  time  when  the  contusion  was  in- 
flicted. Hence,  the  prospective  expert  witness  should  always  enquire 
carefully  as  to  the  existence  of  these  predisposing  causes.  If  the 
crystalline  lens  has  been  dislocated  backward  (sometimes  without  such 
dislocation)  the  iris  may  suffer  inversion  (retroversion,  or  retroflec- 
tion) — a  condition  which  often  closely  simulates  iridodialysis  and  irid- 
eremia.  The  distinction  is  easily  made  by  the  fact  that,  under  the 
ophthalmoscope,  the  ciliary  processes  will,  in  retroversion,  be  found 
to  lie  concealed,  but  not  in  iridodialysis  or  irideremia.  In  the  latter  two 
conditions,  further,  there  is  much  more  likelihood  of  considerable  hy- 
phemia being  present  on  account  of  the  necessarily  ruptured  iris  tissues. 

Rupture  of  the  sphincter  iridis  without  iridodialysis  or  irideremia, 
is  rare  indeed,  but  has  occurred  a  number  of  times.  It  is  apt  to  be 
accompanied  by  hyphemia,  and  is  always  attended  by  traumatic  my- 
driasis. 

Traumatic  mydriasis  without  rupture  of  the  sphincter  iridis,  is 
not  uncommon,  and  is  due  to  paralysis  of  the  sphincter  iridis. 

All  of  these  affections  (except  traumatic  mj'driasis  without  rup- 
ture, which  now  and  then  disappears  spontaneously)  are  absolutely 
incurable. 

The  loss  of  earning  power  consequent  upon  any  of  these  iris  in- 
juries can  only  be  determined  in  any  particular  case  by  actual  investi- 
gation. Sometimes,  even  after  complete  traumatic  aniridia,  the  vision 
is  but  ver}^  little  disturbed;  again  there  may  be  monocular  diplopia, 
dazzling,  etc.,  those  who  work  much  in  the  dark — e.  g.,  coal  miners — 
are  least  inconvenienced.  If  severe  iritis  or  irido-eyclitis  follows,  the 
sight  may  be  entirely  lost. 

Liable  to  be  mistaken  for  the  results  of  trauma,  are  the  following 
natural  anomalies  of  the  iris: 

Heterophthalmos,  or  difference  in  the  coloring  of  the  irides  of 
the  two  eyes.  I  have  known  such  a  condition  to  give  rise  to  a  mis- 
taken diagnosis  of  traumatic  iritis. 

Corectopia,  or  ectopia  pupillce,  or  malposition  of  the  pupil. 

Polycoria,  or  more  than  one  pupil  in  the  same  eye. 

Persistent  pupillary  memhrane,  or  fetal  remains  which  present 
themselves  ordinarily  as  fine  grayish  or  brownish  threads  stretching 
from  iris  to  lens,  or  spanning  the  pupillary  gap  completely.  Such 
threads  are  now  and  then  mistaken  for  posterior  synechias,  but  can 
easily  be  distinguished  from  such  pathological  products  by  the  fact 
that,  unlike  posterior  synechias,  they  do  not  spring  from  the  pupillary 
margin  but  from  a  point  a  little  farther  out  than  that,  from  some  point, 

45 


OPHTHALMIC  JURISPRUDENCE 

in  fact,  on  the  circulus  iridis  minor  on  the  anterior  surface  of  the  iris. 
Posterior  synechia?  spring  either  from  the  margin  of  the  iris  or  from 
its  posterior  surface.  Another  point  of  distinction  is  that  under  atro- 
pin,  these  threads,  or  bands,  prove  to  be  very  elastic ;  the  pupil,  in  spite 
of  such  threads,  dilating  quite  smoothly  and  round. 

Congenital  colohonia  of  the  iris  is  very  often  mistaken  either  for 
an  artificial  coloboma,  or  else  for  a  retroflection,  or  retroversion,  of  the 
iris,  due,  of  course,  to  trauma.  In  a  congenital  coloboma,  however,  the 
sphincter  iridis  continues  into  and  round  the  gap  unbrokenly,  whereas 
no  sphincter  appears  in  a  coloboma  due  to  traumatism  or  in  the  gap 
produced  by  a  folding  backward  of  the  iris.  Further  marks  of  dis- 
tinction are :  A  congenital  coloboma  is  almost  always  situated  below 
(though  exceptions  to  this  rule  exist)  ;  and,  moreover,  a  congenital 
coloboma  is  often,  perhaps  usually,  associated  with  coloboma  in  the 
choroid,  the  ciliary  body  and  the  lens. 

A  special  importance  attaches  to  the  differential  diagnosis  between 
a  congenital  coloboma  of  the  iris  and  an  artificial  coloboma,  or  a  retro- 
flection,  from  the  fact  that  eyes  afflicted  with  congenital  coloboma  are 
very  often  partly,  and  sometimes  completely,  blind.  Therefore,  o 
claimant  might  readily  attempt  to  attribute  to  traumatism  what  was, 
with  him,  a  natural  condition. 

Foreign  bodies  in  the  anterior  chamber  and  in  the  iris,  usually  enter 
by  way  of  a  perforation  in  the  cornea ;  in  very  rare  instances,  they 
enter  sidewise  {via  the  lens  perhaps)  or  from  the  rear.  Whether  in  the 
iris  or  the  anterior  chamber,  their  presence  may  be  tolerated  indefinite- 
ly, but,  as  a  rule,  they  sooner  or  later  set  up  a  low  grade  inflammation 
which  gradually  spreads  to  the  ciliary  body  and  the  other  intraocular 
structures  with  resulting  intraocular  abscess,  or,  more  frequently,  ocu- 
lar atrophy.  The  worst  feature  of  such  cases,  however,  is  the  tendency 
toward  the  setting  up  of  sympathetic  ophthalmia.  Without  extraction 
of  the  foreign  body,  prognosis  is  always  grave. 

The  choroid  and  the  ciliary  body  when  injured,  whether  or  not  a 
foreign  substance  is  left  within  these  structures,  present  perhaps  the 
most  serious  conditions  with  which  the  ophthalmic  surgeon  is  called 
upon  to  deal.  Even  a  slight  contusion  upon  the  eye  may  cause  a  hem- 
orrhage from  the  structures  (especially  in  anemic  persons,  or  those 
who  are  suffering  from  arterio-sclerosis  or  high  degrees  of  myopia) 
and  the  extravasated  blood  may  collect  between  the  choroid  and  the 
sclera,  or  else,  which  is  much  more  serious,  between  the  choroid  and 
the  retina.  Sometimes  the  hemorrhages  are  slight  and  promptly  ab- 
sorb. In  such  cases  the  vision  does  not  suffer.  Oftener,  however,  the 
choroid  is  detached,  or  the  retina,  and  then  the  eye  is  almost  invariably 

46 


OPHTHALMIC  JURISPRUDENCE 

lost — in  the  former  event  from  irido-ehoroiditis,  and  in  the  latter,  from 
the  tendency  which  any  detachment,  however  slight,  of  the  retina,  dis- 
plays, to  become  complete. 

Ruptures  of  the  choroid  are  generally  situated  between  the  optic 
disk  and  the  macula  lutea.  In  the  simpler  cases,  the  vision,  which  im- 
mediately after  the  injury  is  nearly  always  bad,  rapidly  improves,  but 
scotomata  are  nearly  always  left  permanently,  and  a  perfect  result  is 
the  very  rare  exception.  In  the  graver  cases,  the  sight  is  nearly  always 
permanently  lost,  owing  to  detachment  of  the  retina,  hemorrhage  into 
the  vitreous  and  other  complications. 

Perforating  wounds  of  the  ciliary  body,  if  they  lie  in  a  direction 
parallel  to  that  of  the  ciliary  folds,  are  often  of  good  prognosis;  if, 
however,  they  lie  diagonally  across  the  folds,  or  transversely,  the  eye  is 
generally  lost  by  atrophy,  and  there  is  in  such  cases  a  marked  tendency 
toward  sympathetic  involvement  as  well. 

In  case  a  foreign  substance  is  left  in  the  ciliary  body,  the  prog- 
nosis is,  of  course,  even  graver. 

The  retina  alone  is  hardly  ever  injured,  for  penetrating  wounds 
of  this  membrane  of  course  involve  some  of  the  other  structures  neces- 
sarily ;  while  even  a  rupture  of  the  retina,  produced  by  a  contusion,  is 
likely  to  be  accompanied  by  solutions  of  continuity  in  the  choroid.  Ret- 
inal ruptures  produced  by  contusions  nearly  always  occur  by  contre- 
coup. 

The  slightest  of  all  the  injuries  of  the  structure  in  question  is 
known  as  commotio,  or  concussio,  retinoe.  The  retinal  changes  which 
are  designated  by  this  name  have  been  mistaken  for  retinal  detachment, 
and,  as  they  nearly  always  undergo  perfect  resolution  and  that  very 
quickly,  they  are  hence  important  in  a  legal  viewpoint.  The  distinction 
between  concussion  and  detachment  is  made  by  the  following  signs: 
In  concussion  the  retinal  vessels  are  wholly  undisturbed,  showing  no 
parallactic  movement  or  increased  hypermetropia,  the  opposite  state  of 
affairs  presenting  itself  in  retinal  detachment.  Further,  in  concussion, 
the  retinal  plications,  or  folds,  occurring  in  detachment,  are  absent. 
Finally,  a  concussion  (which  is  always  recent)  is  never  quite  so  white 
or  so  opaque  as  a  recent  retinal  detachment. 

Other  forms  of  retinitis  than  the  relatively  unimportant  concussio, 
are  far  more  serious.  Such,  for  instance,  are  the  retinal  changes  at  the 
macula  lutea,  neither  commotio  or  detachment,  following  contusions 
of  the  globe  and  nearly  alwaj^s  serious  and  permanent.  In  fact  the 
visual  disturbance,  being  macular,  is  well-nigh  always  incapacitating, 
so  far  as  the  earning  power  of  the  injured  eye  is  concerned.  An  im- 
portant matter  to  remember  is  that  the  changes  in  question  are  of  very 

47 


OPHTHALMIC  JURISPRUDENCE 

slow  development  in  the  vast  majority  of  cases,  weeks  being  required  in 
some  instances  before  the  visual  difficulty  appears.  In  such  cases,  of 
course,  the  question  often  arises,  especially  in  court,  why  was  it  that, 
if  the  eye  was  so  severely  injured  as  is  claimed,  the  plaintiff  did  not 
observe  the  fact  until  several  weeks  after  the  accident — until,  indeed, 
other  persons  perhaps  had  found  it  possible  to  recover  for  their  in- 
juries received  at  the  same  place  and  at  the  same  time  ? 

Hemorrhage  confined  to  the  retina  is  generally  of  little  import 
permanently.  There  is  often  for  a  time,  especially  if  the  bleeding  be 
central,  erythropsia  and  metamorphopsia.  Whether  central  or  not,  a 
hemorrhage  is  almost  always  accompanied  by  a  scotoma.  These  ap- 
pearances, however,  provided  the  extravasated  blood  does  not  break  its 
way  into  other  structures,  are  very  evanescent. 

Detachment  of  the  retina,  however,  may  occur  in  consequence  of 
large  effusions  of  blood,  though  oftener  by  far  it  is  produced  primarily 
by  contusions  or  perforations  of  the  globe.  Occasionally  the  retinal 
separation  is  consequent  (at  a  late  date)  upon  the  contraction  of  cica- 
tricial tissue,  either  in  the  vitreous  or  in  the  retina  itself.  Extensive 
loss  of  vitreous  is  not  infrequently  responsible  for  its  production.  The 
amount  and  kind  of  visual  disturbance  depend,  of  course,  upon  the 
extent  and  situation  of  the  retinal  detachment.  Contraction  of  the  vis- 
ual field  and  scotoniata  correspond  pretty  closely  to  the  portions  of  the 
retina  that  are  detached,  and  metamorphopsia  (distorted  vision)  to- 
gether with  erythropsia  (red  vision)  in  the  case  of  hemorrhages,  is  apt 
to  precede  the  formation  of  the  blind  areas,  and  to  diminish  pari  passu 
with  the  increasing  blindness. 

Prognosis  is  always  bad,  although  traumatic  detachment  of  the 
retina  is  oftener  followed  by  complete  recovery  than  are  the  other 
varieties. 

The  crystalline  lens,  as  a  result  of  traumatism,  may  undergo  dis- 
placement (luxation  or  subluxation)  or  be  rendered  opaque  (traumatic 
cataract)  or  become  the  seat  of  a  foreign  substance.  Luxation,  partial 
or  complete,  may  be  the  result  of  a  penetrating  or  rupturing  wound  of 
the  eyeball,  or  merely  of  a  contusion  or  compression  of  the  eye.  It  is 
said  to  have  happened  as  a  result  of  concussion  sustained  by  the  skull, 
and  even  by  the  neck  and  the  feet  (as  in  falls  from  a  height).  Even  in 
partial  dislocation  there  is  loss  of  accommodation  and  sometimes 
monocular  diplopia.  In  backward  dislocations,  the  iris  becomes  tremu- 
lous (iridodonesis)  by  reason  of  loss  of  the  normal  support  which  is 
afforded  the  iris  by  the  lens.  In  case  the  lens  is  so  displaced  as  to 
lie  with  its  margin  across  the  pupillary  area,  one  part  of  the  eye  may 
be  extremely  hypermetropic  and  the  other  myopic.   Complete  disloca- 

48 


OPHTHALMIC  JURISPRUDENCE 

tion  into  the  vitreous  means,  refraetionally  at  least,  aphakia  (as  after 
a  cataract  extraction)  hence  an  extreme  degree  of  hypermetropia — un- 
less, indeed,  the  eye  was  very  myopic  to  begin  with.  In  some  cases  of 
partial  dislocation,  the  diagnosis  can  only  be  made  after  atropinization 
and  then  by  means  of  the  ophthalmoscope.  Forward  dislocations  are 
suflSciently  obvious  even  to  beginners  in  ophthalmology. 

It  should  b€  remembered  that  displacement  of  the  lens  is  now  and 
then  congenital.  Thus,  P.  H.  Adams,  of  Oxford,  England,  reports 
the  case  of  a  family  with  congenital  displacement  of  the  lenses,  in  which 
the  mother  and  seven  out  of  nine  children  suffered  from  this  condi- 
tion,^ 

Partial  dislocations  can  sometimes  be  remedied,  though  never  fully, 
by  means  of  spectacles.  Even  then,  however,  the  great  difference  in 
the  refraction  of  the  two  eyes  (anisometropia)  renders  impossible  the 
simultaneous  employment  of  both  organs,  and  hence  the  victim  of 
the  accident  is  rendered  monocular  to  all  intents  and  purposes,  except 
that  he  possesses  in  the  vision  of  the  injured  eye  a  moderate  reserve  of 
sight  to  draw  upon  in  case  the  fellow  organ  should  go  blind  from  any 
cause  at  some  time  in  the  future. 

Complete  dislocation  into  the  vitreous  does  not  call  for  extraction, 
or  other  form  of  operation,  unless  productive  of  irritation.  Glasses 
prove  of  benefit  in  this  condition  under  the  same  conditions,  as  a  rule, 
as  in  partial  dislocations.  Complete  dislocation  forward — i.  e.,  into  the 
aqueous,  is  so  often  followed  by  chronic  glaucoma,  lenticular  opacity 
(cataract)  and  adhesions  to  the  iris  and  cornea  that,  in  the  great  ma- 
jority of  cases,  extraction  of  the  lens  is  necessary.  In  any  case  of 
dislocation  of  the  lens,  forward  or  backward,  partial  or  complete,  the 
lesion  is  apt  to  be  followed  by  lenticular  turbidity  (cataract).  This 
may  render  operation  necessary  at  a  later  date. 

Traumatic  cataract  without  lenticular  dislocation  is  often  a  conse- 
quence of  injuries  to  the  eye,  accompanied  or  unaccompanied  by  per- 
foration or  rupture  of  the  ocular  tunics.  If  entirely  uncomplicated, 
these  cases  can  usually  be  conducted  to  a  successful  termination  (the 
younger  the  subject  the  greater  the  probability  of  success)  so  far  as 
respects  the  injured  eye  alone.  However,  the  eye  can  never  be  em- 
ployed to  advantage  simultaneously  with  the  fellow  organ,  excepting 
only  in  the  extremely  rare  instances  where  the  fellow  eye  was  already 
aphakic  or  extremely  hypermetropic. 

A  foreign  body  in  the  erj^stalline  lens  means,  as  a  rule,  progres- 


1  Eeport  of  June  meeting  of  the  Ophthalmological  Society  of  the  United  King- 
dom, Medical  Press,  June  25,  1909,  abstracted  in  Ophthalmology  for  Nov.,  1909, 
Vol.  VI,  No.  1,  p.  105. 

49 


OPHTHALMIC  JURISPRUDENCE 

sive  opacity  of  that  structure.  A  wide  pupil  and  oblique  illumination 
are  often  prerequisite  to  the  discovery  of  the  intruding  substance.  In 
my  experience,  small  foreign  bodies  in  the  lens,  if  not  amenable  to  a 
magnet,  are  better  left  alone,  for,  now  and  then,  the  expected  cataract 
never  develops,  and  the  patient  retains  an  extremely  useful  organ, 
whereas,  if  necessary,  operative  interference  can  be  instituted  at  a  later 
date.  Much  depends,  of  course,  upon  the  extent  of  the  injury  suffered 
by  the  lens,  and  on  the  character  (as  regards  probable  asepsis,  etc.)  of 
the  offending  substance. 

Wounds  of  the  vitreous  humor  are  not  as  a  rule  important,  except 
so  far  as  they  imply  an  injury  to  other  and  more  irritable  struc- 
tures— the  retina,  the  choroid,  etc.  In  other  words,  simple  compres- 
sion or  contusion  of  the  eye,  seldom  results  (owing  to  the  elasticity  of 
the  vitreous)  in  serious  injury  to  the  vitreous  humor,  excepting 
when  a  hemorrhage  from  the  coats  of  the  eye,  breaks  through  the 
limiting  membrane  (hyaline  membrane)  or  when  an  exudate  is  poured 
out  into  the  vitreous  from  the  ocular  coats.  In  cases  of  hemorrhage 
into  the  vitreous,  the  outlook,  though  not  hopeless,  is  bad.  I  have  seen 
in  young  patients,  after  moderate  hemorrhage,  complete  recovery  in 
every  portion  of  the  field;  but,  in  the  vast  majority  of  cases,  positive 
scotomata,  movable  or  immovable,  remain,  impairing  the  sight  and 
earning  power  according  to  their  extent  and  to  the  parts  of  the  visual 
field  to  which  they  correspond.  In  cases  of  exudate,  connective  tissue 
bands  are  formed  in  the  vitreous,  and  these,  contracting,  cause  detach- 
ment of  the  retina  and  choroid,  together  with  atrophy  of  the  eyeball. 

When  the  coats  of  the  eye  are  perforated,  hemorrhage  and  exudate 
into  the  vitreous  are  far  more  likely  to  occur,  together  with  retinal  and 
choroidal  detachment,  and,  in  addition,  there  may  occur  an  intraocular 
abscess.  Prognosis  depends  on  the  site  of  the  injury,  the  presence  or 
absence  of  infection,  the  quantity  of  exudate  or  blood  poured  out,  the 
amount  of  vitreous  which  has  escaped  from  the  eye,  and,  finally,  on 
the  presence  or  absence  of  a  foreign  bod}^ 

Foreign  bodies  in  the  vitreous  may  arrive  in  that  humor  after  a 
journey  through  almost  any  part  of  the  enveloping  membranes.  Per- 
haps most  frequently  they  pass  through  cornea  and  lens;  often,  how- 
ever, through  sclera,  choroid,  and  retina.  They  consist,  for  the  most 
part,  of  bits  of  metal  and  stone,  but  particles  of  coal,  wood,  and  other 
substances  have  often  been  found  in  the  vitreous. 

Diagnosis  is  often  difficult.  There  may  manifest  themselves  at  once 
by  scotomata  and  peripheral  contractions.  Sometimes  the  path  which 
has  been  taken  by  the  offending  substances  can  be  discerned,  either  by 
the  naked  eye  (lateral  illumination  should  be  employed)  or  by  means 

50 


OPHTHALMIC  JURISPRUDENCE 

of  the  ophthalmoscope ;  this,  again,  may  be  impossible,  owing  to  a  great 
variety  of  circumstances.  Sometimes  the  ophthalmoscope  reveals  the 
foreign  body  with  much  distinctness,  often,  however,  the  quantity  and 
situation  of  the  hemorrhage  forestalls  even  the  haziest  kind  of  view. 
Air  bubbles  in  the  vitreous  are  highly  suggestive,  but  not  absolutely 
pathognomonic,  for  they  may  occur  even  when  the  coats  of  the  eye 
have  not  been  perforated.  IMagnetic  needles  have  been  devised  for  the 
purpose  of  detecting  the  presence  of  metals  which,  like  steel  and  iron, 
exert  an  influence  upon  magnetic  substances.  The  giant  magnet  is, 
with  regard  to  such  particles,  both  an  excellent  means  of  diagnosis  and 
a  splendid  instrument  for  removal.  In  very  many  cases,  too,  the  X-ray 
gives  valuable  information ;  in  fact  this  agent,  in  a  very  large  number 
of  instances,  is  undeniably  our  most  reliable  means  for  the  detection 
of  foreign  substances  in  the  eye.  A  decided  advantage  is  that  many 
substances  not  susceptible  to  magnetism  (and  therefore  not  responsive 
to  the  needle  and  the  magnet)  are  very  plainly  revealed  by  it — for 
instance,  certain  kinds  of  glass,i  though  unfortunately,  not  wood. 
For  the  technique  required  Avhen  magnetic  needles  or  the  X-ray  is 
employed  for  the  purpose  of  detecting  foreign  bodies  in  the  eye  the 
reader  is  referred  to  the  appropriate  portions  of  this  Encyclopedia. 

The  foreign  body  should,  when  possible  (especially  if  possible 
without  too  great  disturbance  of  the  intraocular  tissues)  be  extracted. 
In  no  case,  however,  should  the  operator  merely  go  "a-fishing"  in  the 
eye.  In  the  case  of  substances  susceptible  to  the  action  of  magnets, 
such  a  removing  instrument  may  be  employed  at  times  with  very  con- 
spicuous success.  In  any  case,  however,  even  after  the  apparently 
successful  removal  of  the  foreign  substance,  the  prognosis  should  be 
guarded,  for,  even  in  such  cases,  there  may  follow  such  cicatricial  con- 
traction that  the  eye,  after  a  time,  is  absolutely  worthless.  If  the  for- 
eign body  is  septic  in  character,  the  eye  is  nearly  always  lost,  whether 
the  foreign  body  is  or  is  not  successfully  extracted. 

Suppose  the  foreign  body  is  allowed  to  remain  within  the  vitreous. 
What,  then,  is  the  prognosis  ?  If  the  body  be  septic  or  oxidizable,  the 
eye  is  lost  almost  as  a  matter  of  course.  Sometimes,  on  the  other 
hand,  aseptic  and  non-oxidizable  foreign  bodies  in  the  vitreous,  are 
tolerated  indefinitely,  with  or  without  e.ncystment.  As  a  rule,  however, 
even  bodies  of  this  class  sooner  or  later  occasion  iritis,  cyclitis,  and  a 
plastic  form  of  hyalitis,  followed  by  contraction  of  the  bands  of  exu- 
date, and  then  sets  in  detachment  of  the  retina,  w4th,  perhaps,  a 


1  Depending  on  the  chemical  composition  of  the  glass.  Tivnen  (Ophth.  Becord, 
xxiv,  12,  p.  640)  says:  "Generally  speaking,  the  localization  of  glass  in  the  eye 
by  the  X-ray  is  very  disappointing. ' ' 

51 


OPHTHALMIC  JURISPRUDENCE 

shrinking  of  the  eyeball.  The  general  health  may  suffer,  and,  as  a  last 
chapter  in  this  melancholy  history,  there  may  follow  sympathetic  oph- 
thalmia. 

For  the  amount  of  damage  done  to  the  earning  capacity  by  the 
various  forms  of  ocular  injury,  the  reader  is  referred  to  a  later  sec- 
tion of  this  division,  entitled  ^^ Visual  Economics." 

Simulation  of  ocular  injury  or  disease. 

By  simulation  we  understand  the  feigning  of  an  ocular  injury  or 
disease  which  does  not  at  all  exist;  by  Ihe  false  attrihution  of  an  injury 
or  disease,  the  assignment  to  an  actually  existent  disease  or  injury  of 
an  untrue  cause ;  by  exaggeration,  finally,  the  pretense  that  a  certain 
injury  or  disease  which  does  actually  exist  (whether  the  cause  assigned 
be  true  or  false)  is  of  greater  extent  or  severity  than  is  really  the  case. 

Closely  related  to  these  is  dissimulation,  or  the  pretense  that  an 
actually  existent  disease  or  injury  does  not  exist.^ 

All  these  forms  of  falsification,  excepting  the  last-named  only, 
either  with  regard  to  the  eyes  or  to  other  organs,  are  very  com- 
mon— a  fact  that  has  been  stated  in  almost  every  work  on  legal  medi- 
cine with  such  a  fullness  of  detail  that  the  subject  has  actually  been 
worn  threadbare.  However,  to  exemplify  briefly  with  regard  to  the 
eye  and  with  respect  to  simulation  only :  School  children  attempt  to 
escape  from  their  school  room  duties  by  pretending  that  their  eyes  are 
painful.2  Soldiers  and  sailors  seek  to  avoid  military  service  by  pre- 
tending blindness,  partial  or  complete,  in  one  or  both  eyes.  Pensioners 
have  been  known  to  simulate.  Hysterical  people,  in  order  to  excite 
either  wonder  or  pity,  often  feign  blindness.  Finally,  workmen  in  fac- 
tories and  mines,  and  passengers  on,  and  employes  of,  railroad  and 
steamship  lines,  often  endeavor,  after  an  accident,  to  produce  on  the 
mind  of  the  examining  expert  the  impression  that  their  eyes  are  in- 
jured, though  not  the  slightest  harm  has  really  been  produced. 

Of  all  the  diseases  of  the  eye  which  are  feigned  absolutely,  i.  e., 
simulated — where  the  lie  is,  as  it  were,  "made  out  of  whole  cloth" — 
the  commonest  are  amblyopia  and  amaurosis.  Next  to  these  comes 
kopiopia,  or  the  rapid  exhaustion  of  vision;  and,  finally,  there  come 
concentric  contraction  of  the  visual  field  and  scotomata.     These  four 


1  Simulation,  false  attribution,  exaggeration,  and  even  dissimulation  have  all 
been  enormously  increased  in  Europe,  and  to  some  extent  in  the  United  States, 
since  the  passage  of  the  various  * '  Workmen 's  Compensation  Lavys. ' '  For  a  notice 
of  such  laws,  see,  under  the  names  of  the  different  countries,  the  division  of  this 
section  entitled,  * '  OpMhalmo-Sanitary  Legislation. ' ' 

2  The  Germans  have  a  word  Sicliulkranlcheit,  by  which  they  designate  any 
feigned  illness. 

52 


OPHTHALMIC  JURISPRUDENCE 

troLibles,  of  course,  when  actually  existing,  can  be  exaggerated  also, 
but,  owing  to  the  precision  with  which  the  condition  of  the  visual  ap- 
paratus can  at  the  present  time  be  determined,  it  is  practically  im- 
possible to  simulate  any  other  affections  of  the  eye  than  just  these  four. 
Almost  all  other  diseases  must  show  some  actual  pathological  changes, 
in  which  event,  of  course,  there  is  possible,  in  the  way  of  falsification, 
merely  exaggeration  or  else  the  assignment  to  the  pathological  condi- 
tion of  an  untrue  cause. 

Tests  for  the  simulation  of  concentric  contraction  of  the  visual 
field  and  scotomota. — This  sort  of  simulation,  though  very  rare  in- 
deed, has  yet  been  known  to  be  practised.  The  commonest  form  is  that 
in  which  it  is  pretended  that  there  is  mere  concentric  contraction  of 
the  field.  The  contraction  is  generally  feigned  to  be  of  high  degree,  as 
otherwise  the  injury  to  the  earning  power  would  be  too  slight  to  con- 
stitute a  ground  for  heavy  damages.  The  very  existence  of  central  sco- 
tomata,  ring-shaped  scotomata,  and  hemianopic  defects,  is  wholly 
unknown  except  to  experts.  Possibly  an  expert  might  hope  to  simulate 
defects  like  these  with  a  moderate  chance  for  success.  Expert  or 
layman,  however,  the  claimant  should  be  examined  on  various  days,  or 
at  least  occasions,  and  the  sejjarate  results  should  be  written  down  and 
carefully  compared.  By  taking  the  size  of  the  field  as  a  whole,  and  also 
the  size  of  the  various  scotomata  (if  any  are  alleged  to  be  present)  at 
various  distances,  almost  any  malingerer  with  regard  to  the  matters 
in  question,  can  surely  be  exposed.  It  should  be  remembered,  how- 
ever, that  in  cases  of  hysteria  (an  affection  that  is  often  alleged  to  be 
of  traumatic  origin,  as  after  a  railway  accident)  the  contraction  of 
the  field  and  the  various  other  scotomata  do  not  remain  the  same 
throughout  the  test,  even  in  genuine  cases. 

Tests  for  the  simidation  of  kopiopia. — Kopiopia  is  almost  always 
due  to  errors  of  refraction,  to  paresis  or  paralysis  of  the  ciliary  mus- 
cle, to  various  affections  of  the  extrinsic  muscles,  or  to  neurasthenia  or 
hysteria.  In  all  such  cases,  of  course,  the  physical  signs  of  the  various 
disorders  mentioned  will  be  present,  and  there  can  be  but  little  chance 
of  error.  Sometimes,  however,  rapid  exhaustion  of  the  eyes  does  really 
occur  as  an  isolated  symptom,  and  then  the  question  of  malingering 
or  no  malingering  is  very  hard  to  answer.  Repeated  testing,  from  the 
nature  of  the  affection,  is  of  very  little  use.  Continued  observation  is 
now  and  then  serviceable;  but,  occasionally,  actual  detective  work 
should  be  resorted  to  by  those  in  charge  of  the  defense.  Sometimes  a 
little  investigation  of  this  kind  discloses  wonderful  matters.  For  in- 
stance, it  may  show  that  the  supposedly  kopiopie  person  is  spending 
a  considerable  number  of  his  hours  in  writing  or  reading.    Again,  a 

53 


OPHTHALMIC  JURISPRUDENCE 

simulator  may  at  times,  for  an  attractive  wage,  consent  to  copy  fine 
print  for  many  hours  daily,  or  nightly,  especially  if  the  place  of  work- 
ing is  such  that  he  believes  he  will  not  therein  be  subject  to  damaging 
observation. 

Tests  for  the  simulation  of  amblyopia  and  amaurosis. — Where 
amblyopia  or  amaurosis  is  feigned,  the  affection  is  almost  always  de- 
clared to  be  unilateral;  nevertheless,  for  the  sake  of  convenience,  we 
shall  treat  first  of  the  very  rare  instances  where  blindness  is  alleged 
to  exist  in  both  eyes.  We  depend,  in  such  cases,  very  largely  on  the 
presence  or  absence  of  the  pupillary  light-reaction.  If  the  pupil  acts 
quite  well  to  light,  the  claimant  is  probably  malingering.  However, 
a  word  of  caution  is  necessary  as  to  this,  for,  in  a  very  few  in- 
stances of  actual  amaurosis  (i.  e.,  where  the  lesion  is  situated  high  up 
in  the  optic  tract)  the  pupillary  light-refiex  is  retained  unimpaired.  On 
the  other  hand,  one  should  always  bear  in  mind  that  cases  exist  in 
which  the  pupil  does  not  react  to  light,  though  light  perception  is  pres- 
ent. Then,  too,  some  persons  possess  the  power  of  contracting  or  di- 
lating the  pupil  at  will,  while,  finally,  the  presence  of  posterior  synechias 
accounts  for  the  immobility  of  some  pupils. 

The  way  in  which  the  pupillary  light-reaction  should  be  tested  is 
this:  The  claimant,  by  ordinary  diffuse  daylight,  is  caused  to  face  di- 
rectly a  window,  and  to  gaze  at  a  distant  object,  the  while  he  holds  a 
hand  across  the  eye  that  is  not  under  examination,  in  order  to  exclude 
the  light  therefrom.  The  examiner  then  first  notices  the  size  of  the 
pupil  in  the  eye  that  is  being  tested,  and  then  excludes  the  light  there- 
from (by  holding  a  hand  across  it)  for  as  long  as  five  or  six  seconds. 
On  removing  his  hand,  the  examiner  will  find,  in  case  the  light-reflex  is 
normal,  that  the  pupil  has  considerably  enlarged.  The  enlargement,  or 
dilatation,  remains  for  about  half  a  second,  and  then  is  followed  by  a 
very  decided  contraction.  This  contraction  is  succeeded  by  a  moderate 
dilatation,  and  that  by  a  still  more  moderate  contraction,  until  at  last 
the  pupil  becomes  stationary  in  a  condition  of  more  or  less  moderate 
contraction,  according  to  the  intensity  of  the  ilumination.  By  the 
rapidity  and  the  amplitude  of  these  pupillary  excursions  the  examiner 
decides  as  to  whether  the  light-reflex  is  normal  or  abnormal. 

All  the  conditions  of  the  test,  however,  as  above  laid  down,  should 
be  carefully  complied  with.  Thus,  if  the  examinee  stands  with  his  back, 
instead  of  his  face,  toward  the  window,  the  illumination  may  not  be 
sufficient  to  affect  the  pupil  visibly,  even  if  the  light-reflex  be  normal. 
Again,  if  the  eye  that  is  not  under  examination  be  not  excluded  from 
the  light,  the  illumination  that  enters  that  eye  will  affect  the  pupil  of 
the  fellow  organ  through  the  so-called  "consensual"  light-reflex.    Still 

54 


OPHTHALMIC  JURISPRUDENCE 

further,  if  the  examinee's  gaze  be  not  directed  at  a  distant  object,  then 
the  contraction  of  the  pupil  which  results  from,  or  at  least  accompanies, 
convergence  and  accommodation,  will  suffice  to  confuse  the  examiner. 

To  exclude  the  possibility  of  error  through  posterior  synechia,  the 
pupils  of  both  eyes  should  be  subjected  simultaneously  first  to  high  and 
then  to  low  illumination.  In  proper  cases  (i.  e.,  in  young  subjects  and 
where  there  is  no  suspicion  of  glaucoma)  atropin  may  be  resorted  to, 
and  is  generally  conclusive. 

Then,  too,  there  are  other  tests.  Dilatation  of  the  pupils  being 
an  almost  constant  result  of  amaurosis,  the  absence  of  this  symptom  is 
exceedingly  significant.  True  it  is  that  dilatation  can  be  produced  arti- 
ficially, e.  g.,  by  means  of  atropin  or  cocain ;  but  such  a  factitious  my- 
driasis can  easily  be  detected  by  the  fact  that,  in  nearly  all  such 
instances,  the  mydriasis  is  nearly  or  quite  ad  maximum.  Complete 
dilatation  ad  maximum  would  indicate  the  combined  employment  of 
atropin  and  cocain.^  Shrewd  malingerers  often  use  a  weak  solution  of 
the  drug,  or  defer  the  appearance  for  examination  until  the  pupillary 
dilatation  has  somewhat  subsided.  Schmidt -Rimpler's  test  for  the 
simulation  of  bilateral  amaurosis  is  this :  The  examiner  directs  the 
patient  to  look  at  his  own  hand.  A  malingerer,  especially  if  ignorant, 
Avill  now  and  then  look  purposely  elsewhither  than  at  the  hand,  al- 
though, as  a  matter  of  fact,  a  person  who  has  been  blind,  whether  for  a 
short  time  or  for  a  long  one,  experiences  no  difficulty  whatever  in  fixing 
either  of  his  hands  with  the  visual  axes.  The  Schmidt-Rimpler  test  has 
been  somewhat  modified  by  Burghardt,  who  suggests  that  the  claimant 
be  requested  to  put  out  the  forefinger  of  one  hand,  and  then  touch  that 
finger  with  the  forefinger  of  the  other  hand.  People  actually  blind,  ex- 
perience no  difficulty  in  doing  this.  Quite  important  as  a  test  for 
amaurosis  (especially  if  declared  to  be  of  long  standing)  is  the  star- 
ing, fixed,  unmeaning,  look  of  the  eyes,  which  is  very  soon  acquired  by 
those  who  are  truly  blind,  and  with  which  the  experienced  oculist  can- 
not help  being  familiar.  Not  quite  so  important,  and  yet  of  some  sig- 
nificance (because  more  likely  to  be  overlooked  even  by  a  coached  ma- 
lingerer) is  the  short-stepping  of  the  truly  and  totally  blind,  together 
with  the  upward  turning  of  the  face,  and  a  generally  ' '  listening ' '  ex- 
pression. Repeated  tests  made  with  test-cards  ending  in  lines  of  dif- 
ferent-sized type  on  the  different  days,  or  occasions,  of  testing  (e.  g., 
Snellen  40  on  one  occasion,  Snellen  20  or  10  on  another)  will  now  and 


1 ' '  The  mydriasis  produced  by  the  simultaneous  action  of  atropin  and  cocain  is 
the  most  considerable  that  can  possibly  be  attained." — Fuchs,  Text  Boole  of 
Ophthalmology,  New  York,  1893,  p.  259. 

55 


OPHTHALMIC  JURISPRUDENCE 

then  suffice  to  expose  the  simulation  of  bilateral  amblyopia,  the  ma- 
lingerer believing  that,  on  each  occasion,  he  should,  to  be  consistent, 
leave  off  reading  at  exactly  the  same  number  of  lines  from  the  bottom 
of  the  card.  Further,  it  is  always  a  ground  for  the  greatest  suspicion 
•when  the  claimant,  in  reading  aloud  the  test  type,  declares  that  he  can 
read  no  further,  although,  thus  far,  he  has  made  no  mistake  in  identify- 
ing letters,  A  strictly  honest  reader  will  almost  invariably  miscall  the 
hardest  letters  (for  instance  B  and  S)  in  one  line,  before  declaring  his 
total  inability  to  read  any  of  the  letters  of  the  next.  Again,  if  he  mis- 
calls only  certain  letters  in  a  line,  and  these  are  the  easiest  letters  in 
that  line  (for  instance  T  and  L),  this  is  also  ground  for  some  suspicion. 
However,  it  should  be  remembered  that  even  ordinary  patients,  who, 
for  instance,  are  being  tested  for  glasses,  will  now  and  then  abruptly 
stop  and  declare  their  inability  to  read  further,  though,  up  to  that 
moment,  they  had  not  miscalled  a  single  letter.  In  the  case  of  such 
patients,  however,  repeated  urging  will  invariy,bly  bring  about  the 
reading  of  still  finer  lines  of  type  and  the  customary  irregular  and 
gradual,  instead  of  sudden  and  even,  fading  away  of  the  power  to  read 
on.  It  is  also  well  enough  to  note  that  the  intluence  of  astigmatism 
should  be  excluded  before  the  failure  to  read  easy  letters  while  harder 
ones  are  recognized,  should  be  regarded  as  suspicious.  Not  infrequently 
(in  the  case  of  unskilled  malingerers,  who,  of  course,  constitute  the 
largest  class)  the  replies  of  the  examinee,  while  he  is  being  tested,  are 
manifestly  absurd.  For  example,  he  may  allege  that  a  weak  lens,  or 
even  a  flat  glass,  improves  his  vision  greatly,  or  "magnifies"  the  letters 
very  much.  A  -j-  1.00  D.  S.  "seems  to  feel  good"  to  the  eye,  while 
a  -}-  -50  D.  )S.  causes  extreme  pain.  Threatening  movements  toward  the 
claimant  (accompanied  by  the  greatest  caution  neither  to  make  a  noise 
nor  to  set  in  motion  a  current  of  air — noises  and  air-currents  often 
alarming  patients  truly  blind)  will  occasionally  throw  a  claimant  off 
his  guard ;  and,  in  one  instance,  I  detected  a  malingerer  merely  by 
"making  a  face"  before  him — the  suddenly  altered  expression  of  the 
claimant 's  countenance  being  quite  sufficient  evidence  that  he  had  seen. 
A  peephole  through  which  the  alleged  amaurotic  subject  can  be  ob- 
served from  a  neighboring  apartment  is  often  an  instrument  of  scientific 
precision,  if  not  of  dignity.  Sometimes,  from  such  a  coign  of  vantage, 
the  claimant  will  be  observed  to  take  up  books  and  papers,  and  examine 
them  critically.  In  very  many  instances,  however,  nothing  suffices  but 
protracted  observation,  especially  in  cases  of  simulated  amblyopia,  in 
which  condition,  of  course,  the  presence  or  absence  of  mydriasis  and 
the  presence  or  absence  of  the  pupillary  light-reflex  are  very  much 

56 


OPHTHALMIC  JURISPRUDENCE 

less  to  be  depended  on  as  tests  for  malingering  than  in  eases  of  simu- 
lated amaurosis.^ 

Finally,  it  should  always  be  borne  in  mind  that  the  mere  allegation 
of  amaurosis  or  amblyopia  is  in  itself  a  suspicious  circumstance  (par- 
ticularly if  unaccompanied  by  evidence  of  renal  alteration)  for  the 
very  simple  fact  that  blindness,  partial  or  complete,  non-congenital,  not 
due  to  refractive  errors,  or  corneal,  aqueous,  or  lenticular  obstructions, 
and,  furthermore,  presenting  no  ophthalmoscopic  changes  whatever, 
is  exceedingly  rare.  Occurring  in  connection  with  a  claim  for  dam- 
ages, an  allegation  of  blindness,  without  the  presence  of  a  single  sup- 
porting objective  symptom,  is  a  proper  ground  for  suspicion  of  very 
high  degree. 

The  simulation  of  unilateral  amaurosis  and  amblyopia  is  very 
much  easier  to  detect  than  is  the  bilateral  variety  of  simulation,  al- 
though (as  has  been  stated  supra)  it  is  much  more  commonly  prac- 
tised. The  following  methods  of  detection  have  been  chosen  by  the 
present  writer  as  being  of  especial  value  in  legal  cases.^ 

The  method  of  Cuignet. — Direct  the  claimant  to  read,  at  the  same 
time  to  hold  quite  still  both  his  head  and  the  reading-matter.  Insert 
a  pencil  vertically  between  the  eyes  and  the  book.  If  the  patient  con- 
tinues to  read  uninterruptedly,  he  is  undoubtedly  seeing  with  both  eyes, 
because,  did  he  not  see  with  one  eye  such  letters  as  were  quite  invisible 
to  the  other  (on  account  of  the  pencil  intervening  between  that  other 
eye  and  those  letters)  he  could  not  read  them.  This  test  is  by  no 
means  infallible,  being  absolutely  worthless,  indeed,  in  the  case  of  all 
malingerers  who  have  been  thoroughly  coached  about  it.  Such  maling- 
erers can  easily  refuse  to  read  all  such  words,  oi'  portions  of  words,  as 
are  overlaid  by  that  particular  "ghost-pencil"  (there  are,  of  course, 
two  of  these)  which  stands  on  the  side  of  the  sound  eye.  Further,  the 
examiner  must,  in  any  case,  be  absolutely  certain  that  both  the 
claimant's  head  and  the  reading  matter  are  kept  absolutely  unmoved. 
Otherwise,  a  claimant  may  seem  to  be  malingering  when,  in  fact  (by 
moving  his  head  or  the  book  a  trifle)  he  is  really  doing  his  best  to  read 
across  the  page  continuously.  A  page  consisting  only  of  letters  un- 
related in  sense  is  preferred  by  some  examiners,  for  the  reason  that 
when  such  a  page  is  employed,  an  innocent  examinee  will  not  be  able 


1  In  fact,  simulated  bilateral  moderate  amblyopia  is  the  hardest  kind  of 
important  ocular  malingering  to  expose. 

2  A  rather  large  number  of  tests  should  be  familiar  to  the  expert,  because 
some  tests  may  easily  enough  be  rendered  useless  by  reason  of  the  claimant  having 
been  very  thoroughly  coached  concerning  them.  Also,  the  expert  can  better  with- 
stand a  cross-examination  when  he  has  used  a  considerable  number  of  methods. 

57 


OPHTHALMIC  JURISPRUDENCE 

to  appear  guilty,  merely  by  being  able  to  guess  that  the  words,  or  parts 
of  words,  are,  which,  to  him,  are  really  covered  by  the  pencil. 

One  of  the  best  points  about  this  test  (legally  considered)  is  that  it 
can  be  easily  understood  and  even  repeated  to  his  own  satisfaction  by 
the  average  juryman. 

The  method  of  Alfred  Graefe. — Have  the  claimant  hold  the  pro- 
fessedly bad  eye  closed.  Then  set  before  the  sound  eye  a  prism  in  such 
a  position  that  the  thick  edge  thereof  extends  horizontally  across  the 
pupil.  The  claimant,  of  course,  sees  double — a  fact  he  will  readily 
admit,  because,  so  far,  the  professedly  unseeing  eye  has  not  been  called 
in  question.  Then  let  the  claimant  uncover  the  ' '  unseeing ' '  eye,  at  the 
same  time  that  the  examiner  slightly  moves  the  prism  in  such  a  way 
that  the  sound  eye  cannot  now  possibly  see  double.  If  the  patient  still 
sees  double,  he  is  seeing  with  the  eye  which  he  before  declared  to  be 
blind.  The  prism  employed  in  this  test  must  of  course  be  strong 
enough  (say  10°)  to  insure  that  double  vision  will  necessarily  result 
after  the  second  eye  has  been  uncovered — assuming,  of  course,  that 
the  second  eye  is  possessed  of  sight. 

This  test  has  an  especial  advantage  in  that,  unknown  to  the  claim- 
ant, the  visual  acuity  of  each  eye  can  be  accurately  determined.  This  is 
accomplished  by  having  the  claimant  read  aloud  first  one,  then  the 
other,  of  the  twin  images.  It  can  also  be  understood  by  a  fairly  intelli- 
gent juryman. 

The  test  is  also  carried  out  in  an  even  simpler  form.  The  examinee 
is  permitted  to  look  with  both  eyes.  The  physician  places  a  10°  prism, 
base  up  or  down,  before  the  sound  eye,  and,  if  the  claimant  admits  to 
seeing  double,  he  is  seeing  with  the  alleged  blind  eye,  as  well  as  with 
the  sound  one.  The  difficulty  is,  however,  with  this  simplified  form  of 
the  test,  that  the  claimant,  because  his  alleged  blind  eye  is  manifestly 
under  examination,  will  not  invariably  confess  to  seeing  double  He  is 
much  more  likely  to  do  so  with  the  test  in  the  regular  form. 

The  crossed  diplopia  test. — This  also  is  a  test  carried  out  by  means 
of  a  10°  prism.  Place  the  prism,  base  out,  before  the  alleged  blind 
eye.  If  that  eye  sees,  it  will  make  an  excursion  inward,  involuntarily, 
for  the  sake  of  single  vision.  Of  course,  if  it  does  not  see,  it  will  not 
perform  this  movement.  This  test  is  easily  demonstrated  to  the 
average  intelligence. 

Method  of  Vieusse. — On  a  plain  stereoscopic  card  are  fastened  two 
wafers  of  different  colors — one  rod,  for  instance,  and  the  other  blue — 
at  a  distance  in  the  case  of  each  wafer,  of  I/2  centimeter  from  a  vertical 
line  dividing  the  card  into  halves.  When  so  small  a  distance — only 
1  centimeter — separates  the  wafers,  the  wafer  which  is  on  the  right 

58 


OPHTHALMIC  JURISPRUDENCE 

side  of  the  card  appears,  when  the  card  is  looked  at  through  a  stereo- 
scope, to  be  on  the  left,  and  the  wafer  which  is  on  the  left  half  of  the 
card  appears  to  be  on  the  right.  The  card  is  placed  in  a  stereoscope, 
and  the  instrument  handed  to  the  claimant  with  the  request  that  he 
look  at  the  card  through  the  instrument  and  inform  the  examiner  as 
to  what  it  is  that  he  sees.  If  he  admits  that  he  sees  both  wafers,  then, 
of  course,  he  is  seeing  with  both  eyes.  If,  on  the  other  hand,  he  con- 
fesses to  seeing  one  wafer  only,  he  is  asked  to  state  the  color  of  that 
wafer.  He  will  almost  certainly,  if  malingering,  name  the  color  of  the 
wafer  which  appears  to  be  on  the  side  of  the  sound  eye.  By  so  doing, 
he  of  course,  unmasks  himself  completely,  for  the  wafer  that  appears 
to  be  on  the  side  of  the  sound  eye  is  the  one  which  is  seen  by  the  eye 
that  he  alleges  to  be  blind. 

Perhaps  a  better  way  is  to  have  a  horizontal  line  on  one  of  the 
halves  of  the  card,  a  vertical  line  on  the  other,  these  lines  occupying 
such  positions  that,  when  seen  through  the  stereoscope  by  a  pair  of 
sound  eyes,  they  appear  to  form  a  cross.  If,  then,  a  person  really  blind 
in  one  eye,  looks  through  the  instrument  at  this  card,  he  will  see  either 
the  horizontal  line  only,  or  else  the  vertical  line  cn])\  If  he  admits  to 
seeing  a  cross,  he  is  malingering,  of  course.  Any  juryman  can  under- 
stand this  test. 

The  method  of  Harlan. — Have  the  claimant  cover  with  his  hand 
the  alleged  unseeing  eye.  Place  before  the  sound  eye  a  -\-  6.00  D.  S. 
glass.  This  eye  is  now  artificially  myopic,  and  can  read  (assuming 
that  the  eye  is  emmetropic  naturally)  fine  print  at  a  distance  of  6I/2 
inches  at  the  very  farthest.  Place  a  card  of  fine  type  very  close  to  the 
eyes,  and  have  the  claimant  release  the  injured  organ.  Ask  him  to 
read  aloud,  and  then,  as  he  does  that,  slowly  remove  the  card  from  the 
eyes,  until  a  distance  greater  (to  be  perfectly  sure,  some  inches  greater) 
than  6M2  inches,  is  intervening  between  the  claimant  and  the  card.  If 
the  claimant  still  reads,  he  is  doing  this  solely  by  means  of  the  eye 
which  he  had  previously  declared  to  be  blind. 

This  test  is  also  employed  in  a  slightly  different  way.  The  claim- 
ant, when  the  test  is  applied  in  this  modified  form,  is  not  requested  to 
cover  the  alleged  bad  eye  at  all,  but,  at  the  very  outset,  there  is  placed 
before  both  his  eyes  a  trial  frame  containing  a  -f  6.00  D.  S.  lens  for 
the  sound  eye  and  a  flat  glass  (or,  what  amounts  to  the  same  thing,  a 
-)-  .25  D.  S  lens)  for  the  other.  The  claimant  is  then  requested  to 
read  the  distant  types.  Believing  that  he  has  about  the  same  sort  of 
glass  before  each  eye,  the  examinee  very  often  proceeds  to  read,  thus, 
of  course,  demonstrating  the  fact  that  he  is  seeing  with  the  eye  which 
he  alleges  to  be  blind. 

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OPHTHALMIC  JURISPRUDENCE 

By  the  suppression  of  technicalities,  this  test  can  be  made  very  clear 
to  the  average  jury. 

Method  of  Jackson. — Place  before  the  eye  supposed  to  be  blind  a 
+  4.00  D.  S.  lens  and  before  the  sound  eye  a  -f-  2.00  D.  S.  The  punc- 
turn  remotum  of  the  first  eye  will  now  be  25  centimeters;  of  the  other, 
50  centimeters.  Hand  the  claimant  a  card  of  fine  type,  and  ask  him  to 
read.  If  he  selects  as  his  reading  distance  25  centimeters,  instead  of 
50,  he  is  malingering.    A  good,  court-proof  test. 

Method  of  Snellen. — This  method  requires  the  possession  of  test- 
types  alternately  red  and  green  upon  a  black  ground,  and  a  pair  of 
spectacles  in  which  one  glass  is  green,  the  other  red.  Through  the  red 
glass  only  the  red  letters,  not  the  green,  are  visible;  and  correspond- 
ingly, through  the  green  glass,  only  the  green  letters  and  not  the  red 
ones,  can  be  discerned.  If  the  claimant  reads  all  the  letters  indiscrim- 
inately, he  is  reading  with  both  eyes.  A  test  that  is  promptly  and 
universally  intelligible  and  even  demonstrable. 

Method  of  Nettleship. — Instill  one  drop  of  a  2  per  cent,  solution 
of  atropin  into  the  sound  eye — preferably  after  cocainization.  Then 
bandage  both  eyes  for  one  hour.  Place  in  the  claimant's  hand  a  card  of 
fine  type,  remove  the  bandage,  and  request  him  to  read  aloud.  If  he 
reads,  he  accomplishes  that  feat  by  means  of  the  blind  eye.  This  is 
theoretically  an  excellent  test,  but,  in  practice,  I  have  found  it  difficult 
of  employment,  because  the  claimant  not  infrequently  objects  to  having 
"medicine"  put  into  his  sound  eye.  Hematropin  I  have  also  found 
much  preferable  to  atropin,  because,  the  claimant  being  naturally  some- 
what hostile  to  the  examiner,  is  apt  to  view  with  much  alarm  the  week 
of  actual  blindness  in  the  sound  eye  resulting  from  the  use  of  atropin. 
There  is  also  ever  present,  whether  homatropin  or  atropin  is  used,  the 
remote  possibility  of  relaxing  in  this,  the  soand,  eye  a  long-existing 
spasm  of  the  ciliary  muscle  covering  a  high  degree  of  hypermetropia, 
and  then  of  the  spasm  not  returning  when  the  otherwise  transitory 
effects  of  the  atropin  have  passed  away.  In  such  a  case,  of  course,  the 
hostile  claimant  can  hardly  be  convinced  that  he  has  not  been  seriously 
injured  in  the  sound  eye  by  the  examiner,  and  a  suit  against  the 
examiner  in  which  the  defendant  in  the  original  suit  (or  claim)  may  or 
may  not  be  joined  (according  to  whether  he  can  or  cannot  be  regarded 
as  a  principal,  under  whom  the  examiner  was  acting  as  agent)  may 
follow.  In  any  case,  to  use  this  test  successfully,  the  examiner  must 
make  sure  (preferably  after  the  claimant  has  admitted  his  ability — or 
denied  it — to  read)  that  relaxation  of  the  ciliary  muscle  in  the  sound 
eye  and  consequent  inability  of  that  eye  to  read  fine  type  has  actually 
occurred. 

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OPHTHALMIC  JURISPRUDENCE 

None  of  the  numerous  tests  for  malingering  which  require  the  use 
of  complicated  apparatus  (such  as  Worth's)  or  a  deep  understand- 
ing of  optical  principles,  possesses  half  the  value  in  a  law  court  of  a 
simple  and  generally  intelligible  test,  such  as  any  one  of  those  above 
described.  A  juryman  feels  on  surer  ground,  when  he  understands 
precisely  how  the  fraud  in  question  was  exposed. 

In  addition  to  these  more  particular  methods,  almost  any  one  of 
which  will  suffice  in  the  vast  majority  of  cases,  the  state  of  the  pupil 
as  to  light-reflex  and  dilatation  should  be  carefully  interrogated.  And, 
by  the  way,  when  testing  the  light-reflex  in  a  case  of  alleged  unilateral 
amaurosis,  we  should  never  forget  to  examine  the  consensual  light- 
reaction,  since  this  is  a  means  of  determining  whether  the  non-response 
to  light  in  the  pupil  of  the  alleged  bad  eye  is,  or  is  not,  due  merely  to 
posterior  synechife.  The  way  in  which  to  test  the  consensual  light-re- 
flex is  this :  The  pupil  of  the  eye  to  be  tested  is  alternately  exposed  to 
and  excluded  from  the  light,  while  the  effect  of  so  doing  is  watched  in 
the  second  eye.  If  the  second  eye  (being  itself  healthy)  does  not  re- 
spond to  the  alternate  screenings  and  exposures  of  its  fellow,  then  the 
absence  of  the  light-reflex  from  that  fellow  eye  is  not  due  to  posterior 
synechite.  It  is  to  be  observed  that,  in  unilateral  simulation,  as  well  as 
in  bilateral,  the  malingerer  not  infrequently  resorts  to  the  factitious 
mydriasis  producible  by  means  of  atropin  or  coeain.  In  this  connec- 
tion it  should  be  remembered  that,  when  only  one  eye  has  been  atro- 
pinized,  the  pupil  of  the  other  eye  is  narrower  than  normal,  because  of 
the  consensual  light-reflex  being  excited  unduly  by  means  of  the  unac- 
customed quantity  of  light  which  enters  the  atropinized  eye.  Some- 
times the  pupil  of  the  second  eye  is  found  abnormally  enlarged,  because 
of  some  of  the  atropin  solution  (or  at  times  even  some  of  the  tears 
from  the  atropinized  eye)  having  been  inadvertently  introduced  into 
the  admittedly  sound  eye.  The  admittedly  sound  eye  may  also  present 
a  dilatation  due  to  the  fact  that  so  much  of  the  atropin  solution  has 
been  used  in  the  prof^^ssedly  amaurotic  eye  that  the  general  effects  of 
the  drug  (which  include,  of  course,  a  dilatation  of  the  pupils  of  both 
eyes)  have  been  evoked.  In  unilateral  malingering,  however,  as  well  as 
in  bilateral,  it  may,  in  case  the  claimant  be  a  man  of  shrewdness  and 
understanding,  become  absolutely  necessary  to  resort  either  to  espial 
or  to  protracted  observation — the  claimant,  after  a  few  weeks,  or  while 
away  on  a  visit,  neglecting  to  keep  the  pupil  of  his  "blind"  eye  dilated. 
Threatening  motions  (care  being  taken,  as  before,  to  guard  against  the 
production  of  noise  and  air  currents)  and  also  the  making  of  faces  can 
be  employed  in  unilateral  malingering,  as  well  as  in  bilateral,  by  first 
placing  a  bandage  over  the  sound  eye,  or  directing  the  claimant  to  hold 

61 


OPHTHALMIC  JURISPRUDENCE 

a  hand  across  it.    One  of  the  best  of  the  threatening  motions  consists 
in  making  as  if  to  poke  a  finger  into  the  eye. 

The  false  aitribution  of  ocular  injuries  or  diseases. 

Tlie  false  attribution  of  ocular  injuries  or  diseases  (by  which  we 
mean,  as  before  stated,  the  assignment  of  an  untrue  cause  to  a  real 
injury  or  disease)  is,  like  simulation,  very  common.  On  the  other 
hand,  unlike  simulation,  it  is  often  accompanied  by  exaggeration.  (Ex- 
aggeration can  also  exist  without  false  attribution.)  In  fact,  false  at- 
tribution is  much  more  common  than  simulation,  for  the  reason  that 
this  particular  form  of  falsification  can  be  applied  to  a  vastly  wider 
range  of  injuries  than  can  the  latter  description  of  malingering.  Simple 
simulation  indeed,  is,  as  a  rule,  from  its  very  nature  restricted  to 
kopiopia,  to  concentric  contraction  of  the  visual  fields  and  scotomata, 
and  to  amblyopia  and  amaurosis,  while  fraudulent  attribution  can 
find  full  play  and  opportunity  in  well-nigh  every  conceivable  form  of 
ocular  incapacity,  and,  moreover,  almost  always  has  objective  symp- 
toms to  give  it  plausibility. 

To  take  a  few  examples.  A  man  is  afflicted  from  childhood  with 
strabismus.  After  a  railway  wreck,  he  alleges  that  certain  injuries  re- 
ceived by  him  at  the  time  of  the  accident  are  responsible  for  the  cross- 
ing of  the  eyes.  A  woman  has  congenital  eolobomata  of  the  irides. 
After  falling  through  a  defective  sidewalk  she  declares  that  since  the 
injury,  she  has  had  no  sight  whatever,  and  slie  offers  the  eolobomata 
as  objective  evidence  that  her  eyes  were  actually  injured  on  the  oc- 
casion of  the  fall.  A  man  afflicted  with  detachment  of  the  retina  due 
to  extreme  myopia,  seeks,  some  day,  to  ascribe  his  diseased  condition 
to  the  undue  force  with  which  he  was  ejected  from  a  room  in  which, 
against  the  protests  of  the  proper  occupants,  he  was  endeavoring  to  sell 
goods.  A  man  on  whom  a  charlatan  was  "operating"  for  the  removal 
of  a  "cancer"  from  the  eyelid,  received  upon  the  pupillary  area  of  the 
cornea  a  drop  of  some  sort  of  acid.  A  dense  leueoma  formed,  with  the 
total  abolition  of  qualitative  sight,  and,  some  six  years  later,  the 
victim  sought  to  prove  that  the  corneal  opacity  had  been  developed 
in  consequence  of  an  injury  received  in  a  mine.  Such  are  a  few  of  the 
almost  infinite  forms  and  varieties  which  fraudulent  attribution  as- 
sumes in  connection  with  injuries  to,  or  diseases  of,  the  eye. 

In  discussing  these  various  forms  and  varieties  we  divide  our  sub- 
ject into : 

1.  Injuries  affecting  the  eyelids  and  eyebrows.  2.  Injuries  affecting 
the  conjunctiva  and  cornea.  3.  Injuries  affecting  the  iris.  4.  Injuries 
affecting  the  lens.    5.  Injuries  affecting  still  deeper  portions  of  the  eye. 

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OPHTHALMIC  JURISPRUDENCE 

1.  Injuries  affcciing  the  lids  and  eyebrows. — With  respect  to  the 
false  assignment  of  causes  in  the  case  of  injuries  to  these  parts,  it 
is  always  necessary,  of  course,  lO  consider  the  nature  of  the  wound 
or  wounds  in  relation  to  the  cause  assigned.  It  will  often  occur  that 
the  cause  assigned  could  not  possibly  account  for  the  appearances  pro- 
duced. On  the  other  hand,  the  examiner  must  be  cautious  not  to  de- 
clare as  impossible  a  cause  which,  after  all,  is  really  the  true  one. 
Thus,  as  stated  already,  under  the  heading  of  ' '  The  commonest  injuries 
with  which  the  ophthalmo-surgical  expert  has  to  deal,"  I  mentioned 
the  very  deceptive  appearance  which  is  often  produced  by  contused 
wounds  of  the  eyebrow,  these  wounds  not  very  infrequently  seeming 
to  have  been  produced  by  a  knife,  axe,  or  other  cutting  instrument, 
though  produced  in  fact  by  the  fist.  I  also  indicated  the  great 
importance  attaching  to  a  correct  distinction  between  contused  wounds 
and  incised  wounds  in  this  portion  of  the  body,  persons  often  being 
accused  of  assault  with  a  deadly  weapon,  or  intent  to  kill,  when,  as  a 
matter  of  fact,  they  are  wholly  innocent  of  such  a  high-grade  crime.^ 
The  distinction  is  easily  made,  as  may  be  recalled,  by  means  of  the 
following  signs :  1. — A  contused  wound  is  the  far  more  likely  to 
present  an  areola  of  ecchymosis.  2. — Under  a  lens,  the  walls  of  a  con- 
tused wound  are  seen  to  be  not  actually  smooth,  but  more  or  less 
ragged.  3. — While  an  incised  wound  shows  all  the  tissues  divided  just 
as  deeply  down  as  the  wound  reaches,  a  contused  wound  mimicking 
an  incised  wound,  shows  some  of  the  fibers  of  the  more  resisting  tissues 
undivided,  while  others,  deeper  down  in  the  wound,  are  severed.  4. — 
The  really  contused,  though  apparently  incised,  wound  is  generally 
more  extensive  (longer)  at  the  bottom  than  at  the  surface,  while  the 
really  incised  wound  is  apt  to  possess  a  so-called  "tail"  both  at  the 
beginning  and  at  the  end — in  other  words  to  be  of  greater  extent  in  the 
skin  than  in  the  deeper  tissues.  This  distinction  is  due  to  the  fact 
that,  in  the  really  incised  wound,  the  inflicting  instrument  cuts  from 
without  inward,  whereas,  in  the  case  of  a  wound  of  the  contused 
variety,  the  incising  instrument — the  bone — cuts  from  within  outward. 

It  is  always  worth  remembering  that  not  infrequently  a  claimant  is 
honestly  mistaken  as  to  the  nature  of  the  weapon  with  which  his 
wound  was  produced.  Thus,  he  may,  reasonably  enough,  have  seen  a 
flash  from  a  ring  or  a  cuff-button,  worn  by  the  assaulter,  and,  later, 
observing  the  apparently  incised  nature  of  the  wound,  have  come  to 


1  It  is  owing  to  the  great  importance  of  this  distinction  that  the  matter  is 
given  some  treatment  under  the  present  head  as  well  as  under  that  of  ' '  The  com- 
monest injuries  with  which  the  ophthalmo-surgical  expert  has  to  deal." 

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OPHTHALMIC  JURISPRUDENCE 

the  conclusion  (more  or  less  unconsciously  perhaps)  that  what  he  has 
seen  was  the  flash  of  a  knife.  He  will  then,  almost  to  a  certainty, 
declare  (and  of  course  with  the  utmost  honesty)  that  he  saw  a  knife  in 
the  hand  of  his  assailant,  or  even,  in  case  he  happened  to  be  possessed 
of  a  rather  active  imagination,  that  he  saw  the  assaulter  "draw"  a 
knife. 

As  an  instance  of  the  opposite  state  of  affairs,  i.  e.,  when  it  appears 
from  the  look  of  the  wound  that  a  knife  could  hardly  have  been  em- 
ployed, although,  as  a  matter  of  fact,  a  knife  was  the  actually  inflicting 
instrument,  I  refer  to  the  rather  rare  instances  where  a  single  sweep 
of  a  knife  across  the  eyelid  has  occasioned  a  zigzag  wound,  presenting 
a  torn — the  so-called  "lacerated" — appearance.  This  phenomenon  is 
due  to  the  fact  that  the  knife,  before  it  cuts,  stretches  out  the  very  ex- 
tensible skin  before  it  and  then  parts  the  tissues.  When  the  skin  goes 
back  into  place,  the  appearance  is  that  of  a  V  or  a  Z,  as  if  a  hook  or 
some  such  object  had  engaged  in  the  skin  of  the  lid  and  then  torn  it 
in  two  or  more  directions,  or  perhaps  had  engaged  more  than  once  in 
the  skin.  In  the  case  of  wounds  like  these,  the  question  sometimes 
takes  the  form,  not  as  to  whether  a  knife  was  the  actually  inflicting 
instrument,  but  as  to  whether  a  knife  which  is  admitted  to  have  been 
employed  for  one  single  stroke,  was  not  really  used  again  and  again, 
the  answer  to  this  question  having  an  important  bearing  on  the  legal 
inquiry  as  to  whether  (in  case  the  user  of  the  knife  was  acting  in  self- 
defense)  the  self -defender  did  not,  by  the  emploj^ment  of  "excessive 
force,"  become  in  his  turn  (from  the  legal  viewpoint)  the  aggressor. 

"Wounds  of  the  eyelid  are  sometimes  produced  voluntarily,  with  the 
intent  to  ascribe  the  injury  to  an  accident  or  an  assault  ("putative," 
or  "self-inflicted,"  wounds)  and  then  are  almost  always  superficial  in 
character,  the  lips  of  the  wound,  however,  being  kept  apart  sometimes, 
during  the  process  of  healing,  in  order  that  a  large  and  showy  cicatrix 
may  result.  Almost  invariably,  in  such  instances,  the  factitious  wound 
has  been  resorted  to  in  order  to  give  objective  evidence  to  a  claim  of 
traumatic  amblyopia  or  amaurosis.  The  superficial  character  of  the 
scar,  together  with  the  various  tests  for  simulated  amblyopia  and 
amaurosis,  as  above  set  down.  Mall  almost  invariably  reveal  the  fraudu- 
lent character  of  the  claim. 

Ecchymosis,  being  a  very  common  accompaniment  of  contused 
wounds  of  the  eye,  affords  at  times  important  evidence  in  connection 
with  fraudulent  claims.  One  should  ever  bear  in  mind  that  an  ecchy- 
mosis of  these  parts  is  at  first  violet,  blue-black,  or  livid  red  in  color : 
in  a  day  or  two,  green,  then  yellow,  then  lemon-yellow,  finally  whitish- 
yellow  and  normal.    One  should  also  remember  that,  in  ecchymosis  of 

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OPHTHALMIC  JURISPRUDENCE 

the  ui^per  lid,  the  darkest  portion  of  the  discoloration  is  always,  after 
the  lapse  of  a  few  hours,  at  the  lower  lid-margin,^  the  changes  in  color 
above  noted  showing  earliest  at  the  upper  boundary  of  the  discolored 
area.  It  is,  of  course,  impossible  to  determine  the  precise  age  of  an 
ecchymosis  from  its  color ;  yet,  in  many  instances,  the  hue  of  the  part 
affords  irrefragable  evidence  of  a  fraudulent  claim.  Thus,  for  example, 
if  a  claimant  with  an  ecchymosis  in  the  livid,  or  blue-black,  stage, 
especially  if  the  darkest  part  (in  the  upper  lid)  had  not  yet  settled 
down  to  the  lower  lid  margin,  should  allege  that  this  discoloration  had 
been  produced  a  v\^eek  or  thereabouts  before,  we  should  know  to  a 
certainty  that  he  was  "mistaken." 

Emphysema,  with  crepitation,  of  the  lids  and  orbit  can  be  produced 
by  injecting  air  into  the  loose  areolar  tissue  of  these  parts,  and  a 
simple  tumefaction  without  crepitation,  lasting  for  several  days,  can 
be  produced  (as  every  ophthalmo-surgical  expert  knows)  by  the  hypo- 
dermic injection  of  solutions  of  cocain  and  other  substances — and,  in 
some  instances,  even  of  plain  water. 

Ulcers  in  the  skin  of  the  eyelids  can  easily  be  manufactured  by 
means  of  the  various  irritants,  corrosives,  and  vesicants.  The  most 
commonly  employed  are :  chewed  tobacco,  bruised  garlic,  nitric  acid, 
corrosive  sublimate,  and  quicklime.  I  have  even  been  informed  that  a 
miner  who  was  lightly  burned  in  a  mine  explosion  actually  burned  the 
lids  of  both  eyes,  as  well  as  other  portions  of  his  face,  by  means  of  a 
candle  flame,  applied  by  his  own  hand,  in  order  to  increase  the  extent 
and  severity  of  the  ulcers  that  followed,  and  thus  the  amount  of 
probable  compensation  to  be  received  by  him.^ 

The  injuries  and  discolorations  produced  by  the  different  sorts  of 
acids  and  alkalies  are  worth  recalling  in  connection  with  the  fraudulent 
or  mistaken  attribution  of  injuries.  Thus,  sulphuric  acid  turns  the 
skin  brown;  nitric  acid,  yellow;  while  hydrochloric  acid  either  does 


1  A  phenomenon  due  to  the  fact  that  the  extravasated  blood  ' '  settles ' '  down 
through  the  loose  interspaces  of  the  palpebral  areolar  tissue  till  it  reaches  the 
lower  lid  margin.  About  the  body  generally,  the  darkest  portion  of  an  ecchymosis 
corresponds  pretty  closely  to  "the  point  of  greatest  violence" — i.  e.,  of  greatest 
crushing,  or  contusing,  force — a  state  of  affairs  which  continues  as  long  as  tho 
ecchymosis  remains  visible. 

The  extravasated  blood  not  infrequently  seeps  beneath  the  skin  covering  the 
dorsum  of  the  nose,  and  so  on  into  the  loose  areolar  interspaces  of  the  lids  of  the 
opposite  eye  (the  falsely  denominated  "sympathetic"  ecchymosis).  The  skin  of 
the  nose  being  very  thick  and  opaque,  the  ecchymosis  is,  in  that  part,  invisible, 
and  hence  it  appears  that  an  independent  ecchymosis  of  the  opposite  eye  has  taken 
place,  perhaps  as  the  result  of  a  fracture.  This  phenomenon  of  an  apparently 
independent  ecchymosis  in  the  opposite  eye,  is  so  common,  after  an  enucleation  of 
the  eyeball,  as  to  be  familiar  to  all  ophthalmic  surgeons. 

2  It  may  not  be  uninteresting  to  note  that  the  artificial  production  of  ulcers  is 
probably  "the  earliest,  as  it  "has  been  the  most  extensively  excited  disease." 
Gavin,  Feigned  Diseases,  London,  1843,  p.  332. 

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OPHTHALMIC  JURISPRUDENCE 

not  stain  it  at  all  or  turns  it  very  faintly  yellowish  or  yellowish- 
brownish.  Acids  (especially  "vitriol,"  or  sulphuric  acid)  were  in 
former  days  frequently  (they  are  even  yet  occasionally)  "thrown" 
by  women  into  the  faces  of  their  rivals,  Avith  the  almost  invariable 
results  that  the  skin  of  the  eyelids  and  eyebrows  was  cauterized,  and  a 
suit  for  damages  or  criminal  prosecution  (not  infrequently  both) 
was  now  and  then  the  result.  Acids,  too,  as  already  stated,  are  used 
for  the  artificial  production  of  ulcers  and  cicatrices,  on  which  condi- 
tions a  claim  for  damages  can  be  based.  Alkalies  discolor  the  skin  at 
first  white ;  later,  red  or  dark-brown. 

To  distinguish  the  so-called  "burns"  produced  by  such  eseharotics 
from  burns  produced  by  heated  substances — a  distinction  sometimes 
necessary — the  following  points  are  useful : 

(a)  If  the  injury  be  recent,  a  chemical  test  can  be  made,  and  the 
presence  of  sulphuric,  hydrochloric,  or  nitric  acid,  or  other  eseharotic 
liquid  on  the  skin  can  easily  be  determined.  If  any  of  the  eseharotic 
has  been  spilled  upon  the  clothing,  or  other  surrounding  objects,  the 
chemical  test  is  still  more  applicable. 

(b)  Scorching  of  hairs  in  the  neighborhood  of  the  injury,  points 
to  a  heated  substance  of  some  sort  as  the  almost  certain  origin  thereof, 
for  eseharotics  do  not  affect  the  hairs  of  the  nearby  parts. 

(c)  Blisters,  which  are  almost  always  present  after  injuries  pro- 
duced by  heated  bodies,  are  never  produced  by  the  action  of  eseharotics. 

(d)  After  the  action  of  an  eseharotic  there  is  never  capillary  con- 
gestion (erythema)  of  the  skin  surrounding  the  injured  area.  This 
phenomenon  occurs  invariably  after  burns  by  heated  substances,  if  of 
more  than  the  first  or  second  degree,  unless  the  injuries  are  followed 
so  promptly  by  the  death  of  the  injured  person  that  this  symptom  of 
reaction  does  not  have  time  to  appear. 

(e)  Burns  by  heated  solids  can  generally  be  distinguished  from 
burns  by  heated  liquids,  as  well  as  from  the  results  of  eseharotics, 
whether  liquid  or  solid,  by  the  fact  that  the  eschar  which  is  produced 
by  an  eseharotic,  or  by  a  heated  liquid,  is  soft  and  moist  and  yellowish, 
instead  of  hard  and  dry  and  dark,  as  after  an  injury  produced  by  a 
heated  solid. 

A  very  important  subject  in  connection  with  the  fraudulent  attribu- 
tion of  injuries,  is  that  of  scars  in  the  skin  of  the  lids,  especially  with 
relation  to  their  age,  for,  sometimes,  the  false  attributor  alleges  of  an 
ancient  cicatrix  that  it  is  recent,  or,  on  the  other  hand,  of  a  recent 
cicatrix,  that  it  is  old.  Such  people  also  not  infrequently  cause 
cicatrices  to  be  artificially  removed  (so  far  at  least  as  this  is  possible) 

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OPHTHALMIC  JURISPRUDENCE 

and,  on  the  other  hand,  declare  that  scars  which  formerly  existed  have 
spontaneously  disappeared. 

At  the  very  beginning  it  should  be  thoroughly  understood  that,  in 
the  skin  of  the  eyelids  as  in  other  portions  of  the  body,  very  super- 
ficial burns  or  wounds,  involving  only  the  epidermis  or  the  superficial 
part  of  the  derma,  produce  no  scar  at  all  or  else  a  scar  that  promptly 
disappears  completely.  We  may  also  say — for  the  sake  of  complete- 
ness, since  the  matter  is  otherwise  unimportant — that  a  punctured 
wound  produced  by  an  instrument  of  the  nature  of  an  extremely  fine 
needle  and  consisting  merely  in  the  separation  of  the  anatomical  ele- 
ments of  the  skin  and  underlying  tissues  without  the  production  of  a 
bloody  tract,  produces  absolutely  no  cicatrix  whatever  of  any  sort  or 
kind.  In  the  case  of  a  punctured  w^ound  accompanied  by  the  pro- 
duction of  a  bloody  tract  (however  slight  the  hemorrhage  may  be) 
there  results  invariably  a  scar.  This  sear,  at  first,  is  merely  a  reddish 
point.  Later,  it  becomes  of  a  dark  brownish  color,  and  increases  a 
trifle  in  area  (as  any  one  has  seen  in  the  ease  of  the  punctate  scars 
produced  by  sutures  in  the  skin  of  the  lid).  Still  later,  the  scar  begins 
to  bleach,  and,  at  the  same  time,  to  contract,  till,  finally,  the  color  is  a 
pearly-white  and  the  area  very  small  indeed.  May  such  a  scar  dis- 
appear entirely?  In  my  opinion  it  may,  practically  at  least,  whatever 
it  may  do  theoretically.  Linear  wounds  and  wounds  of  square  extent, 
result  in  cicatrices,  invariably.  Generally  speaking,  too,  such  scars 
are  indelible  unless  tampered  with.  However,  scars  in  the  skin  of  the 
eyelids  disappear  oftener  and  more  completely  than  in  ahnost  any 
other  portion  of  tJie  body.  Operations,  furthermore,  may  be  resorted 
to  which  change  the  appearance  of  all  such  scars,  or  even  (when  the 
cicatrices  are  not  too  extensive  or  too  deep)  remove  them  to  such  a 
degree  that,  at  least  for  all  practical  purposes,  the  condition  of  the 
skin  is  exactly  the  same  as  though  the  scar  had  never  come  into  exist- 
ence. If  the  scar  is  too  deep,  the  skin  can  never  be  restored  quite  to 
its  former  condition  of  free  extensibility  (permitting,  in  fact,  of  far 
withdrawal  from  the  underlying  parts)  and,  if  too  extensive,  the  skin 
will,  after  the  operation,  be  shortened  and  tight-looking,  devoid,  in 
fact,  of  the  folds  and  wrinkles  displayed  by  the  skin  of  the  correspond- 
ing lid  of  the  other  eye.  Sometimes,  however,  by  an  operation  on  this 
other  eye,  a  symmetrical  and  therefore  very  deceptive  condition  indeed 
can  be  produced.  Extremely  accurate  examination  is  necessarj'  in  all 
such  cases,  and  a  magnifying  glass  is  often  helpful. 

Just  at  what  age  of  the  wound  the  different  color-changes  occur  in 
a  sear  cannot  be  determined  precisely  (however  devoutly  such  a  con- 
summation might  be  wished)  even  for  a  particular  case.    In  generjd, 

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OPHTHALMIC  JURISPRUDENCE 

however,  cicatrization  is  complete  (i.  e.,  the  scar  has  completely 
formed)  in  about  four  days  after  a  simple,  linear,  and  non-infected 
incised  wound,  whose  lips  have  been  appropriately  approximated 
Wounds  of  superficial  area  heal  more  slowly  than  incised  wounds 
and  wounds  in  aged  persons  or  diseased  subjects  much  more  leisurely 
than  in  young  and  healthy.  The  pink,  or  reddish,  young  cicatrix  turns 
to  the  older  brownish  variety  in  about  eight  weeks,  or  perhaps  a  little 
more.  In  from  two  to  three  months  additional,  the  cicatrix  has 
bleached  and  taken  on  the  well-known  appearance  of  an  ancient  ci- 
catrix— an  appearance  which,  under  normal  circumstances,  is  just 
about  permanent. 

All  cicatrices,  however,  whatever  their  original  shape,  in  the  eyelids 
as  elsewhere  about  the  body,  tend  to  become  more  and  more  linear  in 
form.  Then,  too,  ancient  cicatrices,  in  the  skin  of  the  eyelids  as  in 
the  body  generally,  get  a  trifle  smaller  in  area  and  a  little  thicker,  as 
they  increase  in  age,  excepting  in  children  only,  in  whom  they  actually 
enlarge  in  area  as  well  as  in  thickness.  When,  however,  children  reach 
adult  life,  their  ancient  cicatrices  begin  to  contract. 

Scars  are  much  more  apparent  in  brunettes  than  in  blonds,  and 
they  are  also  said  to  stand  out  much  more  plainly  in  negroes  than  in 
Caucasians,  by  reason  of  the  fact  (as  alleged)  that  a  cicatrix  never 
acquires  a  rete  mucosum  even  in  the  negro  and  hence  is  forever  devoid 
of  coloring  matter  even  in  the  African  race.  In  my  personal  experi- 
ence, however,  the  statement  has  not  held  good.  I  have  seen  in  negroes 
numerous  sears  that  were  very  deeply  pigmented,  and,  in  the  eyelids, 
many  that  required  the  most  careful  observation  for  their  detection. 

Sears  otherwise  imperceptible  may  often  be  brought  out  plainly  (in 
the  white  race)  by  smart  friction  of  the  lids,  a  procedure  which  red- 
dens the  skin  and  makes  the  white  scar  plainer  by  the  contrast.  A 
lens  is  always  useful. 

Burns  produced  by  explosions  of  gun-powder  sometimes  have  to 
be  distinguished  from  those  produced  by  fire-damp  explosions,  which 
occur  so  frequently  in  mines.  The  necessity  is  all  the  greater  from 
the  fact  that,  in  each  of  these  kinds  of  burns,  the  hairs  of  nearby 
(possibly  also  distant)  parts  are  invariably  scorched:  hence  no  means 
of  distinction  is  afforded  by  the  presence  or  absence  of  scorched  hairs. 
However,  the  distinction  is  very  easily  made  by  the  difference  in  the 
tattoo  marks  in  the  skin  which  each  of  these  forms  of  explosion  pro- 
duces. The  distinction  is  made  in  three  ways :  1. — The  coal  tattoo  is 
blacker,  and  less  violet,  in  color,  than  the  dotting  made  by  gun-powder. 
2. — The  coal-dust  spots  vary  greatly  in  size,  while  the  dots  from  gun- 
powder are  almost  absolutely  uniform,    3. — Particles  of  gun-powder, 

68 


OPHTHALMIC  JURISPRUDENCE 

or  of  coal,  can  be  picked  out  of  the  skin,  and  their  nature  determined 
chemically. 

2. — Injuries  of  the  conjunctiva  and  cornea. — In  traumatic  conjunc- 
tivitis the  question  is  nearly  always  as  to  whether  or  not  the  inflamma- 
tion of  the  conjunctiva  is  traumatic  or  non-traumatic  in  origin.  How, 
then,  can  a  distinction  be  established  between  a  traumatic  conjunc- 
tivitis and  one  not  traumatic?  If  the  conjunctival  inflammation  be 
alleged  to  have  been  produced  by  a  powder  or  a  fire-damp  explosion, 
there  will  nearly  always  exist  in  the  conjunctiva  (also,  perhaps,  in 
the  skin  of  the  lids)  the  same,  or  a  very  similar,  bluish  or  blackish 
tattoo  which  is  produced  in  the  skin  by  such  explosions.  There  will 
also  exist  the  indications  of  a  burn,  namely,  shortening,  thickening, 
wrinkling  or  puckering,  and  opacification  of  the  conjunctiva,  as  well 
as  adhesions  (symblepharon)  between  the  eyeball  and  the  lids.  Burns 
by  acids  and  alkalies  leave  also  conjunctival  cicatrices,  together  with, 
almost  invariably,  the  characteristic  stains  upon  the  skin.  Any  con- 
siderable quantity  of  nitric  or  sulphuric  acid  in  the  eye  causes  deep 
sloughing,  which  means,  of  course,  perforation  of  the  eyeball. 

Conjunctivitis,  alleged  to  be  due  to  trauma,  is  occasionally  manu- 
factured by  the  intentional  introduction  into  the  conjunctival  cul  de 
sac,  of  tobacco  juice,  particles  of  sand,  bits  of  lime,  drops  of  lemon 
juice,  and  solutions  of  bluestone  or  corrosive  sublimate.  Foreign 
bodies  of  considerable  size  and  irritating  properties  have  been  discov- 
ered, neatly  bestowed  within  the  folds  of  the  upper  conjunctival  com- 
missure, to  the  presence  of  which  was  due  a  spurious  conjunctivitis; 
it  is  therefore  desirable,  in  all  suspicious  cases  of  traumatic  conjunc- 
tivitis, to  examine  carefully  the  recesses  of  these  folds. 

Traumatic  pterygium  occasionally  occurs  as  a  result  of  injury  to 
the  conjunctiva  and  cornea,  and,  now  and  then,  a  claimant  for  damages 
alleges  that  a  pterygium  of  the  ordinary  spontaneous^  variety  was  pro- 
duced by  an  accident  for  which  he  seeks  to  hold  some  company  or 
individual  responsible.  The  distinguishing  points,  however,  between 
these  two  varieties  of  pterygia  render  impossible  the  acquiescence  by 
any  honest  expert  in  such  a  mistaken,  or  fraudulent,  explanation  of 
the  origin  of  the  growth.  The  central  point  of  distinction  lies  in  the 
fact  that  a  pterygium  of  traumatic  origin  (customarily  so  designated) 
does  not  possess  a  pterygia!  canal,  or  epithelium-lined  passage  which 
lies  between  the  growth  and  the  eye  at  the  sclero-corneal  junction. 


1  All  the  so-called  non-traumatic,  or  spontaneous,  pterygia,  however,  probably 
originate  in  slight,  repeated  traumata.  See  on  this  head  an  article  by  the  present 
writer,  entitled  "Pterygium,"  in  the  Ophthalmic  Record,  Vol.  14,  No.  10,  Oct., 
1905,  p.  465. 

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OPHTHALMIC  JURISPRUDENCE 

Further,  a  pterygium  of  traumatic  origin  is  often  adherent  more  or 
less  extensively  to  the  eyelid,  thus  giving  very  plain  evidence  as  to  the 
nature  of  the  origin  of  the  growth.  Still  further,  a  traumatic  ptery- 
gium is  less  transparent,  thicker,  and  also  less  freely  movable  on  the 
sclera.  Then  again,  a  false  or  traumatic  pterygium  is  seldom  situated 
(as  is  that  of  the  ordinary  variety)  symmetrically  astride  the  horizon- 
tal meridian  of  the  eyeball — in  fact  not  only  is  it  often  more  above  or 
more  below  this  line,  but  it  is  not  infrequently  situated  wholly  above 
or  wholly  below  the  cornea.  Finally,  a  traumatic  pterygium  is  never 
progressive,  while  the  ordinary,  or  true,  pterygium  may  or  may 
not  be  so. 

3.  Injuries  of  the  iris. — The  salient  points  to  be  remembered  in 
connection  with  the  fraudulent  or  mistaken  attribution  of  injuries  to 
the  iris  relate  to  the  fact  that  many  anomalies  of  the  iris,  which  seem  to 
the  inexperienced  observer  to  be  traumatic,  are  really  congenital. 
These  matters  were  considered  somewhat  fully  in  a  former  division  of 
this  article,  but  here  it  may  be  well  to  remind  ourselves  of  the  fol- 
lowing extremely  important  characteristics  of  certain  congenital 
anomalies. 

a.  The  threads  of  a  persistent  pupillary  membrane  (often  mistaken 
for  posterior  synechine)  do  not  arise  (as  do  the  synechise)  from  the 
margin  of  the  iris  or  its  posterior  surface,  but  from  a  point  on  the 
anterior  surface  of  the  iris,  a  trifle  removed  from  the  pupillary 
margin.     Also,  under  atropin,  these  threads  prove  very  elastic. 

b.  Congenital  coloboma  of  the  iris  can  be  distinguished  from  trau- 
matic coloboma  and  from  retroversion  and  retroflexion  by  the  fact  that, 
in  a  congenital  coloboma,  the  sphincter  iridis  continues  into  and  around 
the  gap  unbrokeniy.  Further,  it  is  almost  (though  not  quite)  always 
situated  below,  and  is  frequently  associated  with  coloboma  of  the 
choroid,  corpus  ciliare,  and  lens. 

c.  Heterophthalmos,  corectopia,  and  polycoria,  are  liable  to  be  mis- 
taken by  the  ignorant  for  the  results  of  traumatism,  but  a  person 
accustomed  to  examining  injured  eyes  could  hardly  be  imposed  upon 
to  that  extent  by  such  plainly  congenital  anomalies. 

4.  Injuries  of  the  lens. — A  claimant  now  and  then  attributes  to  an 
accident  or  an  assault  a  condition  of  the  crystalline  lens  which  is  really 
congenital  or  the  result  of  some  spontaneous  disease. ^  Thus,  a  con- 
genital, or  a  senile,  or  a  diabetic  cataract  may  falsely  be  attributed  to 


1  It  would  seem,  according  to  Woodward,  that  traumatic  cataracts  had  been 
known  to  be  "self-inflicted,"  or  "putative."  Thus  that  writer  in  Witthaus  and 
Becker's  Medical  Jurisprudence,  Forensic  Medicine,  and  Toxicology,  1896,  Vol.  Ill, 
p.  28:  "Cataract  has  been  intentionally  produced  by  thrusting  a  needle  or  a 
knife-blade  through  the  cornea  into  the  crystalline  lens." 

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OPHTHALMIC  JURISPRUDENCE 

a  cause  for  which  some  corporation  or  individual  could  be  held  respon- 
sible in  damages.  A  traumatic  cataract,  however,  is  generally  pro- 
duced by  the  action  of  a  penetrating  instrument  (this,  sometimes,  is  a 
foreign  body  which  remains)  and,  in  such  a  case,  the  tract  whereby 
the  inflicting  instrument  made  its  way  through  the  ocular  tissues  to 
its  point  of  contact  with  the  lens,  is  easily  enough  determined.  In 
such  a  case  there  can  be  no  doubt  as  to  the  origin  of  the  cataract. 
Even  if  the  instrument  were  very  small,  for  instance  a  delicate  needle, 
no  doubt  could  exist  if  lenticular  matters  were  being  extruded  into 
the  aqueous  through  a  rent  in  the  capsule.  Sometimes,  however,  a 
mere  contusion,  or  concussion,  of  the  eye  suffices  to  originate  a  cataract, 
and  then  the  distinction  between  such  a  lenticular  turbidity  and  a 
congenital  or  senile  cataract  may  become  a  harder  matter.  Even  in 
such  a  case,  however,  the  distinction  is  generally  sufficiently  obvious 
on  account  of  Lhe  extremely  regular  and  symmetrical  appearance  of 
congenital  and  senile  opacities,  while  the  lens  turbidity  produced  by 
traumatism  of  any  sort  is  nearly  always  irregular.  Then,  in  addition, 
in  congenital  cataract,  the  eye  as  a  whole  is  apt  to  be  very  badly 
developed.  The  claimant's  history  will  almost  always,  unless  he  be  an 
infant,  conclusively  settle  the  matter. 

Luxation  and  subluxation  of  the  lens  may  be  congenital  or  the  result 
of  disease,  as  well  as  produced  by  trauma.  AVhen  occurring  as  the 
result  of  disease,  the  pathological  condition  consists  of  softening  and 
wasting  away  of  the  zonula,  which,  in  its  turn,  is  occasioned  by  high- 
grade  myopia  and  choroiditis.  Then,  too,  a  spontaneous  variety  of 
dislocation  occurs  in  hypermature  cataracts  as  a  result  of  overstretch- 
ing of  the  zonula.  The  various  concomitant  conditions,  of  course, 
point  out  the  nature  of  these  spontaneous  dislocations,  while,  where 
the  lens  is  congenitally  out  of  place,  the  dislocation  is  almost  always 
upward,  the  lens  is  small  in  size,  the  eyeball  as  a  whole  is  apt  to  be 
poorly  developed,  and,  finally,  there  exists  a  life-long  history  of  in- 
ferior vision. 

5.  Injuries  affecting  still  deeper  portions  of  the  eye. — Injuries  of 
the  vitreous,  the  sclera,  the  choroid,  the  retina  and  the  optic  nerve,  are 
also  now  and  then  attributed  to  supposititious  causes,  but,  in  these 
cases,  the  ophthalmic  expert  has  little  that  is  special  to  guide  him;  he 
can  merely  employ  his  knowledge  of  ocular  pathology  in  general. 

Exaggeration  of  ocular  injuries  and  diseases.  Tests  for  exaggera- 
tion.— Exaggeration  of  the  effects  upon  the  sight  of  various  actually 
existing  injuries  and  diseases  (whether  or  not  such  injuries  and  dis- 
eases are  attributed  to  untrue  causes)  can  generally  be  detected  by 
noting  the  nature  and  situation  of  the  various  pathological  lesions, 

71 


OPHTHALMIO  JURISPRUDENCE 

and  also  by  means  of  the  tests  for  simulation  (laid  down  some  distance 
supra)  since  the  tests  for  simulation  are  useful  in  exaggeration.  Of 
especial  importance  among  these  tests  is  that  of  Alfred  Graefe,  be- 
cause thereby  the  examiner  may,  unknown  to  the  subject  of  the 
test,  determine  accurately  the  visual  acuity  of  each  eye.  It  should  be 
remembered  that  an  actually  existing  amblyopia  may  be  so  exaggerated 
as  to  seem  an  amaurosis,  and  also  that  even  an  actual  amaurosis  may 
be  exaggerated  by  the  contention  that  it  has  been  in  existence  for  a 
longer  time  than  is  really  the  case.  In  the  latter  state  of  affairs,  if  the 
amaurosis  be  alleged  to  be  of  very  long  standing,  the  examiner  will, 
of  course,  be  careful  to  note  whether,  as  yet,  the  eyes  have  taken  on 
the  "staring,  fixed,  unmeaning"  look  of  eyes  that  are  truly  blind,  as 
well  as  whether  the  applicant  himself  has  acquired  the  short  steps,  the 
upturned  countenance,  and  the  generally  "listening"  expression. 

Dissimulation  of  ocular  defects  and  diseases.  This  form  of  falsifica- 
tion is  not  very  common  in  America.  In  Europe,  however,  especially 
since  the  passage  of  the  various  "Workmen's  Compensation  Laws" 
(which  render  employers  liable  for  injuries  to  their  workmen,  irre- 
spective of  all  such  technical  matters  as  assumption  of  risk,  contribu- 
tory negligence,  etc.,  etc.)  the  number  of  dissimulators  has  increased 
enormously.  This  consequence  arises  from  the  fact  that,  when  an 
employer  is  obliged,  in  effect,  to  insure  his  workmen,  he  desires  to 
know  to  a  certainty  before  he  grants  employment  to  any  given  man, 
that  the  applicant  is  possessed  of  sufficient  visual  power  to  keep  from 
being  hurt.  He  stands,  in  a  word,  where  subject  to  such  laws,  in  much 
the  same  position  as  an  accident  insurance  company  or  a  life  insur- 
ance company.  For  this  reason,  it  is  said,  the  Workmen's  Compensa- 
tion Laws,  beneficent  as  they  are  in  many  respects,  have  entailed  much 
hardship  on  workmen  already  defective.  Defective  workmen,  in  fact, 
find  great  difficulty  in  securing  employment  where  such  laws  as  those 
in  question  exist.  And  even  in  America,  dissimulation  is  practised 
now  and  then,  not  only  by  those  attempting  improperly  to  effect  acci- 
dent or  life  insurance,  but  also  by  persons  endeavoring  to  secure 
employment  with  railway  or  steamship  lines,  to  be  admitted  to  the 
army  or  the  navy,  and  even  to  contract  advantageous  marriages. 

Our  chief  solicitude  should  be,  when  testing  the  eyes  of  those  who 
may  be  dissimulators,  not  to  rest  content  with  a  mere  determination 
of  the  central  visual  acuity.  Thus,  a  person's  central  vision  may  very 
well  be  in  each  eye  20/15,  or  above  normal,  and  yet  his  peripheral 
vision  be  very  poor  indeed.  Again,  with  excellent  central  sight,  he 
might  be  harboring  a  foreign  body  in  the  vitreous,  or  be  suffering 
from  chorio-retinitis,  peripheral  lenticular  opacity,  or  eccentric  ulcer 
of  the  cornea.   Further,  he  might  be  afflicted  with  mydriasis,  with  or 

72 


OPHTHALMIC  JURISPRUDENCE 

without  paralysis  of  the  accommodation,  or,  if  tabetic,  with  Argyll 
Robertson  pupils.^ 

Visiml  economics?  An  expert  witness  is  often  required  to  furnish 
the  jury  certain  facts  and  principles  in  accordance  with  which  that 
body  may  be  able  to  determine  the  amount  of  damages  which  ought  to 
be  awarded,  or,  as  the  law  expresses  the  matter,  "to  assess  the  dam- 
ages. ' '  We  have  already  seen  that,  in  assessing  damages  in  a  personal 
injury  case,  a  jury  may  allow  for  matters  such  as:  (1)  necessary  and 
reasonable  expenses — hospital  fees,  for  example,  and  nurses'  and 
doctors'  bills;  (2)  loss  of  time;  (3)  pain  and  suffering;  (4)  disfigure- 
ment; (5)  reduction  of  the  earning  capacity.  This  latter  is  often, 
perhaps  generally,  the  most  important  item  in  the  list.  Now  it  so 
happens  that,  with  respect  to  injuries  of  the  body  generally,  either  the 
actual  reduction  in  the  earning  capacity  must  merely  be  guessed  at  in 
the  most  haphazard  fashion,  or,  really,  cannot  be  estimated  at  all.  In 
the  case  of  the  eye^  however,  the  matter  is  different.  When  an  eye  is 
injured,  an  experienced  oculist  can  (as  a  rule  to  which  there  are 
scarcely  any  exceptions)  determine  the  quantum  of  injury  (i.  e.,  the 
reduction  of  earning  capacity)  with  well-nigh  mathematical  accuracy. 
Nevertheless,  owing  to  the  fact  that  a  proper  formula  had  not  yet 
been  worked  out,  the  accurate  estimation  of  the  loss  of  earning  power 
was,  even  in  a  case  of  ocular  injury,  by  no  means  possible  until  very 
recent  years.  Now,  however,  thanks  to  the  labors  of  Zehender,' 
Groenouw,^  Heddgeus,^  Jatzow,  Josten,  Hansel,  and,  most  of  all,  to 
Magnus,^  of  Breslau,  and  Wiirdemann,^  of  Seattle,  the  subject  of 
"Visual  economics"  has  been  developed  into  a  useful  and,  every- 
thing considered,  extremely  accurate  science.* 


1  Finally,  he  might  be  afflicted  with  an  excellent  memory,  in  support  of  which 
paradox  I  cite  the  case  of  a  gentleman  who,  a  number  of  years  ago,  desired  that  I 
permit  him  to  copy  the  four  smallest  lines,  together  with  the  largest,  of  each  of  my 
Snellen  cards.  He  intended,  he  said,  ' '  to  take  an  examination  for  a  railroad, ' '  and, 
being  "short"  four  lines,  or  thereabouts,  to  commit  the  top  line  and  the  bottom 
four  to  memory.  Thus  fortified,  he  could  read  the  bottom  four  lines  of  any  card, 
out  of  his  memory,  whenever  he  saw  the  top  one.  The  company-doctor  and  I,  he 
said,  had  just  the  same  identical  cards. 

2  For  an  entirely  different  view  of  this  subject,  see,  in  this  Encyclopedia, 
"Visual  economics,"  a  very  thorough  article  by  Dr.  E.  E.  Holt. 

3  These  men  have  proposed  formulas ;  the  others  mentioned  have  proposed  no 
formulas,  but  have  rendered  yeoman  service  in  connection  with  "Visual  econom- 
ics ' '  nevertheless. 

4  The  classical  work  on  the  subject  is  '  *  Visual  Economics, ' '  by  Magnus  and 
Wiirdemann,  Seattle,  Wash.,  1902.  So  exhaustive  and  so  accurate,  in  fact,  is  this 
little  book  of  115  pages,  that  but  little  apparently  remained  for  subsequent  writers 
on  the  topic  of  "Visual  Economics"  to  do,  but  to  amplify  or  to  abridge  that 
epoch-making  book.  Dr.  E.  E.  Holt,  however,  has  added  to  the  subject  much  that 
is  novel  and  interesting.  The  reader  who  desires  to  study  the  subject  thoroughly, 
is,  therefore,  referred  to  the  book  in  question  as  well  as  to  the  major  article  of 
Dr.  Holt:  all  that  is  here  attempted  is  an  abstract  of  the  Magnus-Wiirdemann 
volume.  Moreover,  whenever  possible  within  the  limits  of  this  article,  I  permit 
the  authors  of  that  treatise  to  speak  in  their  own  words. 

73 


OPHTHALMIC  JURISPRUDENCE 

Passing  by  the  formulas  of  Zehender,  Groenouw,  and  Heddaeus, 
which  have  been  supplanted  entirely  by  that  of  Magnus  and  Wiirde- 
mann,  I  will  state  the  latter  formula  at  once,  and  then  proceed  to 
an  explanation  of  the  means  whereby  that  formula  is  ophthalmo- 
logically  and  mathematically  deduced. 

The  formula  itself. — The  complete  formula,  then,  for  the  ocular 
earning  ability,  is  as  follows: 


-^^ — -  VP  VM. 

Now,  while  this  formula,  at  first  sight,  appears  a  little  complicated, 
it  is  reallj^  rather  simple,  as  will  readily  appear  from  the  forthcomJng 
explication.  Moreover,  as  Magnus  and  Wiirdemann  state,^  "If  we 
try  to  simplify  the  complicated  relations  they  could  only  be  forced, 
and  an  arbitrary  speculation  substituted  for  its  [the  formula's]  own 
composite  character."  Then,  too,  this  formula  is  not  by  any  means 
supposed  to  be  presentable  to  a  jury,  but  only  its  results;  as,  for  in- 
stance, that  the  earning  power  of  the  plaintiff  in  the  particular  case 
at  bar  has  been  reduced,  in  consequence  of  the  injury  of  which  he 
complains,  by  42  per  cent.  Exactly  what  amount  this  percentage  of 
reduction  would  be  equivalent  to,  expressed  in  dollars  and  cents,  would 
be  for  the  jury  to  compute,  and,  indeed,  they  ought  to  be  equal  to  so 
very  simple  an  arithmetical  task. 

The  method  whereby  the  formula  is  ohtained. — The  formula  in  ques- 
tion is  based  upon  the  supposition  (which  surely  is  not  refutable)  that 
"injuries  affecting  the  vision  have  a  direct  detrimental  effect  upon  the 
earning  capacity."  From  this  very  simple  proposition  there  follows 
another,  which  is  almost  equally  self-evident,  namely,  that  "the  earn- 
ing ability  ...  is  practically  synonymous  with  the  visual  earning 
ability."  True  it  is  that,  in  certain  occupations,  "such  as  banking" 
and  "some  mercantile  pursuits  and  professions  where  knowledge  may 
be  assimilated  through  the  eyes  of  others  .  .  .  some  specially  well 
placed  and  talented  individuals  may  continue  to  be  economic  factors;" 
but  these  are  great  exceptions,  and,  in  the  vast  majority  of 
cases,  the  blind  are  "incapable  of  earning  anything"  and  are  "a 
charge  upon  their  families  and  upon  the  community. ' ' 

Now,  it  would  seem,  at  first,  to  follow,  from  the  second  of  these 
propositions,  that  the  "visual  earning  ability"  was  exactly  synonymous 
with  "the  visual  working  ability,"  i.  e.,  that  any  reduction  in  the  visual 
acuity,  or  other  functional  ability  of  the  eyes,  would  necessarily  result 


Magnus  and  Wiirdemann,  Visual  Economics,  p.  53. 

74 


OPHTHALMIC  JURISPRUDENCE 

in  a  loss  of  the  ability  to  follow  a  gainful  occupation.  This,  how- 
ever, is  not  at  all  the  case,  as  will  appear  hereafter.  Various  ocular 
incapacities  can,  in  fact,  exist,  without  the  slightest  loss  of  earning 
power  being  occasioned  thereby.    However,  more  of  this  hereafter. 

The  factors  ivhich  constitute  the  earning  ability. — In  a  normal  per- 
son the  complete  earning  ability  "is  a  composite  quantity  resulting 
from  three  factors : 

"  (1)   The  unimpaired  functional  power  of  the  bodily  organs. 

"(2)  The  technical  knowledge  which  is  necessary  for  the  carrying 
on  of  the  vocation. 

"  (3)   The  ability  of  the  individual  to  compete  in  the  labor  market." 

The  most  important  of  these  three  factors  is  the  normal  functioning 
power  (devoid  of  sight,  a  person  is,  as  a  rule,  altogether  dependent 
upon  the  bounty  of  others)  ;  a  very  close  second  in  the  matter  of 
importance,  at  least  in  very  many  occupations,  is  the  preparatory  edu- 
cation, or  technical  knowledge;  while,  far  in  the  rear,  we  find  the 
ability  to  compete. 

In  making  out  the  formula  which  is  to  express  the  equivalents  and 
make  up  of  the  normal  earning  power,  we  designate  that  power  itself 
by  E.  Then  we  express  the  three  elements  of  which  that  composite 
quantity  is  made  up,  as  follows:  the  functional  ability,  by  F;  the 
technical  knowledge,  by  V;  and  the  ability  to  compete,  by  K.  The 
formula  for  the  full  normal  earning  ability  is,  then,  this : 

E  =r  F  VVK 

K,  it  is  of  course  necessary  to  notice,  is  taken  as  a  root,  not  as  a  full, 
value.  The  reason  for  this  is  stated  by  Magnus  and  Wiirdemann 
thus :  "In  this  formula  we  put  the  two  quantities,  F  and  V,  in  their 
full  value  and  accept  K  as  a  root  value.  There  would  be  nothing 
changed  in  the  total  value  of  the  formula  itself  because  as  the  root 
of  1  is  always  1,  and  we  regard  F,  V,  and  K  as  1,  it  is  immaterial  for 
the  formula  itself  if  we  take  one  of  the  three  quantities  as  a  root  or 
not,  but  this  proposition  immediately  changes  when  the  part  intro- 
duced as  a  root  grows  smaller  than  1,  as  happens  in  each  ocular  injury, 
because  the  root  of  each  genuine  fraction  is  always  greater  than  the 
fraction   itself.     Thus  the   influence   of  K,   after  being  introduced 

K 
as  a  root  value,  if  it  has  fallen  off  by  an  injury  to  —  cannot  be 

K  2K      Z 

any  more  —  but  must  be  greater,  for  instance,  —    Therefore,  the 

Z  Z 

damage  to  the  total  value  of  the  formula  will  be  smaller  if  we  take  K 

75 


OPHTHALMIC  JURISPRUDENCE 

as  a  root  value.  By  the  total  elimination  of  K  the  earning  ability- 
will  not  be  diminished,  but  it  will  be  by  a  smaller  damage,  according 
to  the  influence  the  damage  of  K  shall  exercise  upon  the  value  of  the 
total  formula.  We  will  have  to  choose  the  exponent  of  the  root  as 
smaller  or  greater,  according  to  its  rating.  The  value  of  a  root  of  a 
genuine  fraction  is  much  greater  if  its  exponent  is  small.  Therefore, 
if  we  vi^ish  to  lower  it  considerably,  we  take  a  small,  if  we  wish  to 
affect  it  less,  a  greater  exponent  for  K.  AVhile  the  ability  to  com- 
pete, K,  is  comparatively  very  little  impaired  through  minor  ocular  in- 
juries, it  is  very  much  so  through  the  loss  of  one  eye;  we  suit  these 
conditions  by  choosing  a  greater  exponent  of  the  root  in  slight  in- 
juries, but  a  smaller  exponent  for  serious  ones.  We  will  adopt  for 
the  slight  injuries  K  as  the  10th  root  and  for  serious  ones  according 
to  the  demands  of  the  profession,  the  7th  root  or  the  5th  root.  .  .  . 
An  exact  calculation  of  such  a  changeable  quantity  so  dependent 
upon  the  individual  cannot  be  made.  The  calculation  of  the  com- 
peting ability  cannot  be  waived  entirely,  .  .  .  but  should  include 
all  factors  that  are  relative;  as  we  will  show  further  on,  the  peculiar- 
ities of  the  individual  case  may  always  be  considered. 

"When  we  express  the  earning  ability  through  the  three  factors, 
F,  V  and  K,  we  present  E,  not  as  a  sum,  but  as  the  product  of  these 

quantities,  as  multiplied  thusly :  E  =  F  V  V^,  in  which  the  exponent 
x  changes  with  the  degree  of  the  functional  damage.  E  must  always 
be  regarded  as  a  product  and  not  as  a  sum,  to  meet  all  possibilities 
occurring  in  practice.  If  we  add  F,  V  and  K,  the  formula  would  give 
wrong  practical  results,  as  we  see  in  the  following  example:  Sup- 
posing both  eyes  were  lost  in  an  accident,  the  quantity  F  of  our 
formula  would  be  o.     If  we  had  connected  F,  V  and  K  with  the  +, 

and  added,  even  if  K  would  have  become  o,  V  -f-  ^/K,  which  is  the 
remainder  of  the  earning  ability,  would  have  been  left.  This  would 
be  entirely  wrong,  because  a  laborer  who  has  lost  his  functional  abil- 
ity, especially  the  sense  of  sight,  should  be  regarded  in  an  optical  way 
as  entirely  unable  to  earn.  Taking  the  same  example  and  using  our 
formula  with  F:=o,  E  imm-ediately  becomes  o,  because  each  product 
is  always  o  if  one  of  the  factors  is  o.  If  we  would  leave  V  out  of 
our  formula,  E  of  course  =o,  and  actual  practice  confirms  this,  be- 
cause even  the  most  simple  hand  work  requires  a  certain  am.ount  of 
preparatory  education.  Finally,  if  we  drop  the  third  factor,  the  10th 
root  of  K,  the  normal  earning  ability  according  to  our  formula  be- 
comes 0,  which  is  likewise  shown  by  practical  experience,  because, 
even  though  an  individual  is  in  good  health  and  by  reason  of  pre- 
paratory education  has  the  skill  to  work,  if  his  work  is  not  needed, 

76 


OPHTHALMIC  JURISPRUDENCE 

his  economic  value  is  nil.  He  may  possess  the  power  of  working,  as 
the  factors  F  and  V  are  present,  but  he  only  has  earning  ability  when 
he  can  dispose  of  the  work  in  the  economic  market.     Therefore,  if 

X   ■  X   

from  our  formula  (E  ==  F  V  \/K)  we  take  away  the  factor  \^K  (the 
ability  of  the  individual  to  dispose  of  his  work),  the  remainder,  Avhich 
is  the  formula  for  the  working  ability  (A),  would  be  A  =  F  V. 

"The  'working  ability'  is  not  synonymous  with  'earning  ability,' 
although  some  authors  would  have  it  so,  for  instance,  Becker  (5, 
p.  9)  :  The  words  'working  ability'  and  'earning  ability  may  be  re- 
garded identical  in  meaning,  because  in  each  worker  the  latter  de- 
pends upon  the  former.'  Even  if  this  be  so,  the  two  conceptions  are 
not  the  same,  and  such  a  rendition  obscures  the  conception  of  the 
earning  ability,  our  definition  of  which  should  be  clearly  understood. 

"The  calculation  of  injury  to  the  earning  ability  proposed  by  us 

starts  from  the  formula  for  the  full  earning  ability:  E  =  F  V  V^." 
The  formula  may  be  simplified  by  the  absolute  omission  of  the 
factor  V.  Important  as  is  this  factor  (the  preparatory  or  technical 
education)  it  will  never  itself  be  damaged  directly  by  any  ocular  in- 
jury. "Certainly  the  visual  function  may  be  diminished  to  such  an  ex- 
tent that  the  realization  of  the  technical  knowledge  becomes  limited, 
but  this  injury  to  the  earning  ability  in  such  a  case  does  not  rest  upon 
a  diminution  of  the  knowledge  and  the  capacity,  but  limitation  of 
their  use.  We  calculate  the  extent  of  such  limitation,  according  to 
our  method,  directly  by  the  factor  F,  i.  e.,  from  the  performance  of 
the  visual  act,  which  is  the  essential  factor  in  the  full  earning  ability, 
damage  to  which  is  synonymous  with  damage  to  the  total.  Calculat- 
ing F  we  have  already  used  V.  For  simplicity's  sake  it  would  be  bet- 
ter to  omit  V  entirely.    The  working  formula  for  the  earning  ability 

then  would  be:    E  rr  F  VK." 

As,  however,  we  look  at  this  simplified  equation,  the  thought  is 
borne  upon  us  that,  before  we  can  apply  this  formula  for  the  estima- 
tion of  visual  economic  damage,  we  shall  have  to  consider  the  various 
elements  of  which  F  (the  functionating  ability  of  the  eye)  is  com- 
posed— for  F  is,  undoubtedly,  a  composite,  and  not  a  simple,  quan- 
tity.   F,  in  fact,  is  composed  of : 

1.  The  central  acuity. 

2.  The  visual  field. 

3.  Light  and  color  senses. 

4.  The  adaptive  faculty. 

5.  Muscular  movements. 

6.  The  cerebral  processes. 

77 


OPHTHALMIC  JURISPRUDENCE 

Again,  however,  we  may  simplify:  undoubtedly  not  all  of  these 
factors  are  necessary  to  be  considered.  The  cerebral  processes,  for 
example,  may  be  left  out,  because  in  cases  of  injury  to  the  brain  suflQ- 
ciently  severe  to  affect  the  cerebral  ocular  centers,  the  damage  is  by  no 
means  limited  to  these  centers  and  the  neurologist,  instead  of  the 
oculist,  is  called  in.  The  sense  for  light  and  color,  furthermore,  and 
that  of  adaption,  are  not  to  be  considered  separately,  because  an  in- 
jury limited  to  these  functions  is  unknown.  Such  an  injury  is  always 
an  implication  in,  or  complication  of,  an  injury  to  the  visual  acuity 
or  else  to  the  visual  field.  When,  therefore,  we  allow  for  damage  to 
the  visual  acuity  or  the  visual  field,  we  include  the  implicated  injuries 
to  the  light  and  color  sense  and  to  the  power  of  adaption.  Thus  the 
six  constituents  of  F  reduce  themselves,  in  practice,  to  only  three. 
These  three  constituents  stand  to  one  another  in  the  relation  of  fac- 
tors of  a  product ;  for,  in  the  following  of  an  occupation^  not  a  single 
one  of  these  factors  could  be  left  out.  Devoid  of  any  single  one  of 
them,  the  possessor  of  the  damaged  eyes  would  have  an  earning  power 
of  practically  nothing  whatever.  The  elements,  therefore,  should  be 
regarded  as  factors;  not  as  the  elements  of  a  sum;  in  other  words,  as 
0  X  1  X  1,  and  not  as  o  -|-  1  -|-  1. 

Perhaps  the  assertion  that  the  leaving  out,  or  rather  the  destruction 
of  any  of  the  three  important  elements  of  F,  would  result  in  what  is 
practically  complete  annihilation  of  the  earning  power,  should  receive 
a  modicum  of  consideration.  Let  us  first  regard  the  element  of  cen- 
tral acuity,  which,  for  brevity,  we  may  represent  by  the  letter  C. 
Now,  a  person  who  has,  in  both  eyes,  lost  C — i.  e.,  is  suffering  from 
a  large  central  scotoma — sees  absolutely  nothing  whatever  at  which 
he  directly  looks.  He  can  only  see  a  given  object  by  looking  some- 
Avhat  away  from  it,  and,  under  such  circumstances,  an  artisan  is 
totally  unable  to  work.  Perhaps  a  person  afflicted  with  a  large  central 
scotoma  might  be  able  to  earn  a  trifle  as  a  messenger.  Practically, 
however,  he  is  totally  blind.  If,  again,  a  person,  though  retaining  C, 
has  yet  been  deprived  of  all  peripheric  vision — which  we  shall  repre- 
sent by  P — he  also  could  not  work  at  any  trade,  "as  is  readily  seen  in 
cases  of  double-sided  hemianopsia."  Still  further,  if  a  working  man 
were  to  suffer  complete  paralysis  of  all  the  extrinsic  muscles  of  both 
of  his  eyes — in  other  words  should  lose  what  we  shall  represent  by 
M — he,  also,  would  be  totally  disabled.  The  only  visual  act  which 
he  could  execute  would  be  to  "stare  into  vacancy,"  and  see  double. 
He  would  also  have  no  power  to  estimate  distances  or  the  size  of  ob- 
jects.    Even  though  he  should  close  or  cover  one  eye,  and  thus  pre- 

78 


OPHTHALMIC  JURISPRUDENCE 

vent  the  disconcertiug  diplopia,  the  other  eye  would  be  immovable 
and  therefore  useless  in  an  economic  sense. 

Returning  to  our  formula,  before  we  substitute  for  F  its  factors,  0 
and  P  and  ]M,  we  must  consider  certain  very  significant  matters  which 
are  connected  with  these  factors.  In  the  first  place,  as  to  the  relative 
importance  of  these  factors,  C  (the  central  visual  acuity)  is  the  most 
important  of  all.  Whatever  reduces  C  below  the  lowest  limits  de- 
manded by  the  kind  of  trade,  or  calling,  in  question,  of  course  pro- 
duces for  that  work  a  total  disability.  P  (peripheric  vision)  clearly 
comes  next  to  C  in  importance,  while,  finally,  there  comes  M.  "With 
regard  to  this  factor  M,  furthermore,  we  have  to  consider  the  very 
important  fact  that  the  effect  of  a  paresis  or  paralysis  of  a  single,  or 
of  several,  ocular  muscles,  is  very  different  indeed,  according  as  we 
have  to  do  with  monocular  or  with  binocular  vision.  Monocular 
vision  is,  in  fact,  but  little  affected  even  by  the  complete  paralysis  of 
a  single  extrinsic  muscle.  Such  an  affection  merely  diminishes  the 
motility  of  the  eyeball.  In  binocular  vision,  however,  the  element  of 
diplopia  enters  in — a  fact  "of  the  greatest  importance,  as  it  excludes, 
temporarily,  at  least,  retention  of  working  binocular  vision."  In  the 
construction  of  a  formula,  therefore,  we  treat  the  factor  M  in  a  dif- 
ferent manner,  according  as  we  have  in  view  binocular,  or  monocular, 
vision.  "In  the  formula  for  binocular  vision  we  take  the  muscular 
movements  of  each  eye  as  the  product  of  different  factors,  each  of 
which  corresponds  to  the  activity  of  a  particular  muscle.  Now,  if  we 
mark  the  muscles  of  one  eye  with  (m^m^m^m'^m^m^)  and  those  of  the 
other  (m'^m'^m'Sm'^m'Sm'^)  etc.,  we  would  represent  the  whole  mus- 
cular activity  as  (mimamsm^m^mg)  (m^im^m'sm'^n^m^).  In  this 
conception  the  whole  product  would  be  o,  hy  losing  one  single  mus- 
cular motion,  and  therefore  the  binocular  act  would  be  negative.  In 
monocular  vision  the  muscular  activity  should  be  conceived  as  the  sum 
of  the  single  performances,  because,  by  losing  one  of  them  only,  an 
ocular  detriment  has  been  created  and  not  total  earning  disability,  thus 

Still  further,  M  and  P  should  both  be  added  to  the  formula  as 
root,  not  full,  values,  precisely  as  was  done  in  the  case  of  K  (after- 
wards omitted)  and  for  exactly  the  same  reason — i.  e.,  the  damage  to 
the  total  value  of  the  formula  will  be  smaller  (which  accords  with 
the  less  importance  of  M  and  P  as  compared  with  C). 

In  the  words  of  Magnus  and  Wiirdemann  again:  ".  .  .  the 
value  of  the  root  of  a  proper  fraction  increases  with  the  amount  of  its 
exponent,  thus,  if  we  introduce  M  with  a  greater  exponent  of  the 
root  than  P,  in  the  case  of  damage  to  M,  it  will  exercise  less  influence 

79 


OPHTHALMIC  JURISPRUDENCE 

upon  the  total  value  of  the  formula.  We  believe  that  we  may  place 
the  relative  value  of  the  visual  field  and  the  muscular  movements  by- 
choosing  as  exponent  of  the  root  in  the  former  2,  and  in  the  latter  4. 
Of  course,  these  are  arbitrarily  chosen,  as  it  is  an  undisputed  fact 
that  the  central  visual  acuity,  peripheric  vision  and  the  muscular 
movements  have  different  meanings  in  the  act  of  vision,  the  propor- 
tional valuation  of  which  cannot  be  put  into  figures  from  observation 
nor  from  measurement,  it  is  certainly  allowable  for  the  mathematician 
or  the  physician  to  estimate  the  amounts  of  these  exponents  differ- 
ently, but  the  formula  itself  will  not  be  changed." 
The  formula,  then,  for  binocular  vision  is  as  follows : 


S2  =  CVPV  (mim2m3m4m5m6)  (m^m'om'gm'^m'gm'g) 

In  this  formula,  C  is  the  central  visual  acuity  in  the  better  eye. 
The  formula  for  monocular  vision,  however,  is  this : 


S,  =  C  V  %  P  V  2/3  (m^  +  m,  +  m3  +  m,  +  m,  +  mj. 

The  fraction  %,  standing  before  P,  denotes  the  fact  that  the  monocu- 
lar field  of  vision  is  %  as  extensive  as  the  binocular.  The  value  of 
the  muscular  function  is  %  less  in  monocular  than  in  binocular  vision ; 
hence  it  is  estimated  at  %  the  binocular  value. 

Economic  limitations  of  C. — The  economic  limitations  of  the  cen- 
tral visual  acuity  are  not  identical  with  the  scientific  limitations  of 
the  same  faculty.  This,  at  first,  may  sound  a  trifle  startling,  yet,  on 
due  consideration,  we  find  that  the  statement  is  true.  Take  for  in- 
stance the  downward  limitation.  Science  calls  a  person  blind  only 
when  the  acuity  has  entirely  disappeared.  Economically,  however, 
an  individual  is  blind  when  the  acuity  has  become  so  low  that  the  earn- 
ing power  is  nil.  Take,  again,  the  upward  limitation.  Scientifically, 
the  acuity  equals  a  hundred  per  cent,  only  in  case  the  acuity  is  ap- 
proximately 20/20.  Economically,  however,  the  acuity  may  equal  a 
hundred  per  cent.  (i.  e.,  permit  of  plenary  earning  capacity)  although 
it  is  only  20/30,  20/40,  or  even  20/50  or  less.  Much  depends  upon 
the  nature  of  the  occupation,  of  course,  some  occupations  requiring  a 
high,  others  only  a  low,  degree  of  central  visual  acuity  in  order  to 
the  possession  of  plenary  earning  power.  However,  there  is  hardly 
any  occupation  which  demands  for  its  full  and  adequate  exercise  the 
possession  of  scientifically  perfect  central  visual  acuity.  Generally 
speaking,  we  may  say  that  an  acuity  of  1/20  is  the  extreme  downward 
limit  of  useful  acuity  in  any  occupation,  and  20/30  the  extreme  upward 
requirement.   Further,  the  maximum  and  minimum  limits  do  not  have 

80 


OPHTHALMIC  JURISPRUDENCE 

to  exist  in  both  eyes.  If  one  eye  possesses  a  minimum,  the  other  may 
possess  less  (even,  in  fact,  as  little  as  absolute  zero)  and  still  the  acuity 
of  the  eyes  as  a  visual  whole  is  up  to  the  minimum  requirement.  Like- 
wise, if  one  of  the  eyes  possesses  a  maximum  acuity,  the  other  may 
possess  less  (even,  in  fact,  as  little  as  absolute  zero)  and  still  the 
acuity  of  the  eyes  a«  a  visual  whole  is  up  to  the  maximum  require- 
ment. Magnus  and  Wiirdemann  divide  the  different  occupations  into 
two  groups — those  requiring  high,  and  those  requiring  low,  degrees 
of  visual  acuity,  and  specify  a  rather  large  number  of  trades  and  pro- 
fessions belonging  to  each  group.  To  each  of  the  groups  they  assign 
a  maximum  and  a  minimum  C.  Much  as  we  deplore  the  inability,  we 
cannot  reproduce  such  matters  in  this  article,  on  account  of  lack  of 
space. 

The  economic  limitations  of  P. — As  in  the  case  of  C,  so  also  in 
the  case  of  P,  the  scientific  and  the  economic  standards  are  not  at  all  the 
same.  In  the  vast  majority  of  callings,  monocular  limitations  of  the 
field  do  not  impair  the  earning  power.  Magnus  and  Wiirdemann, 
following  Schroeter,  divide  the  binocular  field  into  three  zones  of  30° 
each.  The  first  zone  reaches  from  the  outermost  periphery  to  60° ; 
the  second,  from  60  to  30°,  the  third  from  30°  to  the  fixation-point. 
These  three  zones  are  not  of  equal  value  in  certain  respects,  yet,  as 
what  zone  3,  for  instance,  lacks  in  functional  ability,  it  makes  up  for 
by  its  greater  extent,  these  three  zones  of  P  are  accorded  equal  value. 
By  this  conception,  then,  the  entire  binocular  field  of  vision  (exclusive, 
of  course,  of  what  we  have  represented  heretofore  by  C)  consists  of 
three  factors  of  equal  value.  Thus  a  loss  of  one  eye  entails  a  loss  of 
Yq  the  binocular  field  (no  more  than  that,  because  of  the  overlapping 
of  the  single  fields  in  the  binocular)  and  a  homonymous  hemianopsia 
entails  a  loss  of  %  =  i/o. 

Economic  limitations  of  M. — The  economic  loss  (in  a  person 
possessed  of  binocular  vision)  arising  from  the  impairment  of  a  single 
ocular  muscle  is  very  great  indeed,  because,  diplopia  appearing  in  con- 
sequence of  the  injury,  one  eye  must  necessarily  be  excluded  from 
the  visual  act,  in  order  that  useful  vision  may  be  exercised  at  all.  The 
loss,  therefore,  economically,  is  exactly  the  same  as  that  which  results 
from  the  destruction  of  one  eye.  In  case,  however,  the  subject  was 
possessed  before  the  accident  of  monocular  vision  only,  then  a  smaller 
degree  of  economic  loss  should  be  imputed  to  the  impairment  of  a 
muscle  in  the  seeing  eye.  In  fact,  in  such  a  case,  the  economic  loss  is 
approximately  Yq.  However,  the  six  extrinsic  muscles  do  not  all  pos- 
sess exactly  the  same  value,  at  least  under  any  and  all  circumstances. 
Thus,  for  a  miner  or  a  compositor,  the  rectus  superior  is  especially 

81 


OPHTHALMIC  JURISPRUDENCE 

important ;  for  a  sailor,  the  rectus  externus ;  for  a  bookkeeper,  a  jeweler, 
an  oculist,  etc.,  the  rectus  internus.  For  people  generally,  the  rectus 
internus  possesses  the  most  value.^ 

Special  consideration  of  the  ability  to  compete  (K). — ^When  a 
person's  eyes  are  injured,  the  damage  which  has  been  done  to  him  is 
frequently  two-fold  :  first,  there  is  the  actual  impairment  of  the  working 
ability  of  the  eyes;  second,  there  is  a  diminution  in  the  injured  per- 
son's chances  of  getting  or  of  keeping  a  job.  "Practical  experience," 
for  example,  "shows  that  a  one-eyed  person  not  only  has  more  difficulty 
in  finding  employment,^  but  that  in  some  factories  his  visual  disorder 
makes  it  difficidt  for  him  to  retain  his  employment.  .  .  .  The  in- 
jured person,  therefore,  has  a  right  to  claim  not  alone  a  compensation 
for  the  impairment  of  his  capacity  for  work,  but  also  the  difficulty 
which  he  encounters  in  making  the  most  of  this  capacity."  Thus 
Magnus  and  Wiirdemann.  The  courts,  moreover,  have  begun  to  sustain 
this  view.  Thus  the  highest  tribunal  in  England,  the  House  of  Lords, 
has,  very  recently,  sustained  it.  "A  workman  who  had  lost  the  sight 
of  one  eye  from  an  accident  was  subsequently  able  to  obtain  work  be- 
cause the  defect  in  his  sight  had  not  been  observed.  As  the  result, 
however,  of  a  second  accident  the  blind  eye  had  to  be  removed  and  he 
was  thus  prevented  by  the  obviousness  of  the  defect  from  obtaining 
work.  By  a  majority  of  two  to  one  the  Court  [of  Appeals]  held  that 
the  words  'incapacity  for  work'  in  the  Workmen's  Compensation  Act 
must  be  interpreted  strictly,  and  that  the  man  was  not  entitled  to  com- 
pensation from  his  employer  for  the  second  accident,  because  his  in- 
capacity for  performing  work  was  the  same  after  it  as  before,  in- 
capacity for  obtaining  work  only  being  the  result  of  the  second  acci- 
dent." ^  The  case  was  taken  to  the  House  of  Lords,  and  there  the  judg- 
ment was  reversed.  ".  .  .  the  Lord  Chancellor  said  that  in  his 
opinion,  in  the  ordinary  and  popular  meaning  of  the  words,  there  was 
incapacity  for  work  when  a  man  had  a  defect  which  rendered  his  work 
unsalable,  in  any  market  reasonably  accessible  to  him,  and  that  in  like 
manner  there  was  partial  incapacity  when  his  work  was  rendered  less 
salable.  The  opposite  view  would  leave  a  workman  uncompensated  for 
what  might  be  a  real  and  direct  consequence  of  an  injury.  The  case 
was  accordingly  remitted  to  the  arbitrator  for  the  assessment  of  com- 


1  It  is  only  now  and  then  that  injuries  of  the  ciliary  muscle  affect  the  earning 
power.  By  the  use  of  convex  lenses,  the  impairment  can,  in  the  vast  majority  of 
occupations,  be  compensated.  On  this  head  see  Encydopedie  Francaise  d'ophtal- 
mologie,  Paris,  1910,  Vol.  IX,  p.  713. 

2  We  may  remind  ourselves  in  this  connection  that  the  inability  to  estimate 
distances  and  the  size  of  objects,  which  occurs  at  once  after  the  loss  of  an  eye, 
endures  but  a  very  sliort  time — certainly  in  adults  not  more  than  six  or  eight 
months  and  in  children  two  or  three  weeks. 

s  See  "Journal  of  the  American  Medical  Association,"  June  29,  1912. 

82 


OPHTHALMIC  JURISPRUDENCE 

pensation."  Now,  this  ability  to  compete  (K)  is  composed  of  two  ele- 
ments: 1,  the  applicant's  visual  powers;  2,  the  judgment  which  the 
prospective  employer  will  probably  form  concerning  these  powers. 
As  to  the  first  of  these  elements,  we  express  it,  in  the  formula  for  K, 
under  normal  circumstances,  exactly  as  we  expressed  the  normal  act 

of  vision  (i.  e.,  C  V  PV  M),  "but  in  the  case  of  accidents  the  impaired 
value  of  the  act  of  vision  should  be  put  in  as  the  lowest  value  in  the 
root.  ...  we  have  given  the  reasons  for  accepting  the  ability  to 
compete  as  the  lowest  value  and  we  have  likewise  shown  that  the  ability 
to  compete  is  of  less  value  in  the  formula  for  the  earning  ability  E 
than  the  other  factors,  i.  e.,  it  has  a  smaller  influence  upon  the  value 
of  E  than  the  others.  We  have,  therefore,  adopted  the  ability  to  com- 
pete, K,  as  a  root  value.   For,  if  K  be  reduced  by  an  impairing  of  the 

K 

act  of  vision,  it  becomes  a  proper  fraction,  for  instance,  — .   Now  the 

z 
root  of  a  proper  fraction  is  always  greater  than  the  fraction  itself; 
the  value  of  K  after  the  impairment  if  it  is  taken  as  a  root  value  cannot 

K  2k 

any  more  be  — ,  but  it  must  be  greater,  for  instance, — .   By  taking  K 

z  z 

as  a  root,  its  value,  in  the  case  of  a  visual  impairment,  is  greater  than 
it  would  have  been  if  K  without  root  would  have  been  taken  into  the 
calculation.  And  as  the  amount  of  the  earning  ability  is  directly  fixed 
by  the  amount  of  the  ability  to  compete,  K  exercises  less  influence  upon 
the  earning  ability  than  the  other  factors,  as  soon  as  we  insert  K  as 
root  in  the  formula  for  the  earning  ability.    The  full  formula  being: 


V  K=^S,  V  P  V  m." 

As  to  the  second  of  the  elements  which  go  to  make  up  K,  i.  e.,  the 
part  depending  on  the  judgment  of  the  employer,  that  part  is  expressed 
by  the  exponent  of  the  root  which  is  chosen  for  K.  "If  we  think  that 
the  esthetic  differences  between  simple  blindness  of  the  scientific  stand- 
ard without  injury  to  the  looks  of  the  eye  and  the  loss  of  the  eyeball, 
or,  for  instance,  the  formation  of  a  bad-looking  eye,  as  leucoma  or 
staphyloma  are  greater,  we  may  give  expression  to  our  opinion  by 
choosing  a  great  root  exponent  for  the  ability  to  compete  in  the  case  of 
simple  blindness  without  deformity.  By  leaving  the  selection  of  the 
root  exponent  to  the  judgment  of  the  calculator,  sufficient  room  is 
given  to  the  individual  conception  of  each  case;  thus  our  formula 
adapts  itself  to  the  peculiarities  of  the  individual  case  and  to  the  judg- 

83 


OPHTHALMIC  JURISPRUDENCE 

me7it  of  the  phyfiicmn,  avoiding  thereby  a  rigid  form  and  doing  justice 
to  both  parties."  In  view  of  the  fact  that  we  are  often  "in  the  peculiar 
position  of  estimating  an  ocular  impairment  of  the  ability  to  compete 
when  there  is  no  real  defect  of  working  vision,"  (for  instance,  in  the 
case  of  a  man  with  a  bad-looking  leucomatous  eye,  whose  acuity  is,  say 
.25,  while  the  fellow  eye  is  absolutely  normal)  "we  express  the  diminu- 
tion of  the  ability  to  compete  in  all  cases  by  the  arithmetical  propor- 
tion of  the  visual  acuity  of  both  eyes. ' '  In  the  case  of  the  leucomatous 
individual  just  supposed,  the  numerical  expression  for  the  ability  to 
compete  would  be : 


■;i 


1  +  0.25 


"2 —  ^/  P  V  (mimom3mim.^ra,j)  (m'lm^m'gm'^m'.m'e)  " 


Because  of  lack  of  space,  we  cannot  here  enter  into  the  numerous 
and  ingenious  applications  of  this  formula  which  are  furnished  by  Mag- 
nus and  Wiirdemann,  though  these  are  extremely  interesting  and  in- 
structive. We  can  only  say,  in  bidding  farewell  to  the  formula  in 
question,  that,  though  such  an  extremely  elaborate  hieroglyphic  is  by 
no  means  presentable  to  a  jury,  or,  indeed,  to  corporation  management, 
except  in  isolated  instances,  yet  that  the  ophthalmo-surgical  expert  who 
has  mastered  the  subject  of  "visual  economies"  and  particularly  the 
comprehensively  scientific  formula  which  we  have  been  discussing, 
namely : 


Ci  +  C,     _4  — 

s — -"  V  P  V  M. 


E  =  C  (max.)  V  P  V  M 

will  find  himself  indubitably  better  able  to  wrestle  with  the  question  as 
to  what  degree  of  economic  loss  has  been  sustained  by  a  given  person 
in  consequence  of  some  particular  injury. 

Questions  of  a  general  nature  relating  to  the  power  of  vision. 

Questions  under  this  head  are  chiefly  these:   (1)  As  to  the  possi- 
bility of  recognizing  persons  ^  and  objects  under  various  sorts  of  cir- 


1  In  this  connection,  the  following,  extracted  from  The  Law  and  The  Doctor, 
Vol.  II,  p.  39,  may  prove  interesting :  "  *  *  *  the  physician,  testifying  as  to 
the  possibility  or  impossibility  of  a  certain  act  or  thing,  should  remember  that  his 
evidence  may  be  rebutted  by  testimony  of  a  witness  that  he  has  performed  the  act 
or  accomplished  the  thing  which  the  expert  has  testified  to  be  impossible.  A  case 
illustrating  the  pertinence  of  this  suggestion  was  related  to  the  author  some 
years  ago  by  a  lawyer  who  was  present  at  the  trial.  Two  men  had  broken  into 
the  house  of  an  old  couple  at  night  and  entered  the  sl3eping-room.  The  old 
people  were  awakened  by  the  noise.  The  old  lady,  rising  up,  took  her  glasses  from 
the  head-board  of  the  bed,  and,  by  their  aid,  claimed  to  have  recognized  the  men 

84 


OPHTHALMIC  JURISPRUDENCE 

cumstances  by  ordinary  daylight;  (2)  by  a  gleam  of  lightning;  (3)  by 
the  flash  of  a  pistol;  (4)  by  moonlight;  (5)  by  starlight. 

1.  By  ordinary  daylight.  The  perception  and  also  the  recogni- 
tion of  persons  and  things  by  means  of  the  sense  of  sight  depends  on 
the  size  of  the  object,  its  brilliancy,  its  distance  from  the  observer,  the 
clarity  of  the  atmosphere,  the  observer 's  familiarity  with  the  person  or 
object  to  be  perceived,  his  position  with  respect  to  the  sun  (i.  e., 
whether  gazing  squarely  or  partly  toward,  or  directly  away  from  the 
sun)  the  intensity  of  the  illumination  which  is  shed  upon  the  object, 
and,  finally,  the  acuity  of  vision  on  the  part  of  the  observer.  The  ordi- 
nary test  for  the  acuity  of  vision  is  this :  The  subject  is  placed  at  a  dis- 
tance, generally,  of  20  feet  (6  metres)  from  a  card,  chart,  or  board,  on 
which  are  printed  lines  of  isolated  letters  (i.  e.,  letters  unrelated  in 
sense)  of  varying  sizes,  all  the  letters  of  a  given  size  being  printed,  as 
a  rule,  in  one  and  the  same  line,  and  a  certain  proportionate  relation- 
ship subsisting  between  each  letter  and  every  other  letter  on  the  card. 
This  proportionate  relationship  is  based,  according  at  least  to  the 
method  most  generally  employed,  upon  the  principle  that  the  minimum 
visual  angle  is  precisely  one  minute.  Each  letter,  in  whatever  line,  is 
constructed  of  blocks,  or  units,  each  of  which  subtends,  at  the  distance 
indicated  by  the  number  of  the  line  in  which  the  letter  occurs,  an  angle 
of  exactly  one  minute.  A  whole  letter  subtends,  laterally  as  well  as 
vertically,  an  angle  of  5',  being  composed  laterally  and  vertically,  of 
five  of  the  constituent  blocks,  or  units.  Now,  the  line  numbered  20 
should,  as  already  hinted,  be  read  by  the  average  normal,  unassisted 
eye  at  a  distance  of  20  feet — i.  e.,  the  distance  at  which  the  test  is  ordi- 
narily conducted.  The  line  numbered  15,  is  supposed  to  be  read  by 
the  same  kind  of  eye  at  15  feet;  that  numbered  10,  at  10  feet.  The 
line  that  bears  the  number  30  should  be  read  at  30  feet,  and  so  on  from 
line  to  line  of  larger  and  larger  type  till  the  line  numbered  200  (which 
is  generally  the  largest  used)  is  reached — a  line  which  should,  of 
course,  be  read  throughout  by  the  average  normal,  unassisted  eye  at  200 
feet.    If  the  subject  reads  at  a  distance  of  20  feet  the  line  numbered  20, 


just  as  they  shot  and  killed  the  husband.  Upon  trial  of  the  accused,  the  defense 
introduced  an  oculist  who  testified  that  he  had  examined  the  eyes  of  the  old  lady 
and  the  glasses  in  question,  and  that  it  was  a  physical  impossibility  for  her  to 
recognize  a  person  by  the  aid  of  those  glasses  at  the  distance  at  which  it  was 
testified  the  murderers  were,  as  the  lenses  of  the  eyes  and  the  glasses  could  not 
focus  at  that  point.  Counsel  for  the  prosecution,  in  rebuttal,  identified  the 
glasses  in  question,  asked  the  old  lady  to  take  the  witness  stand,  and  caused  several 
men,  including  the  accused,  to  stand  in  front  of  her  at  the  distance  testified; 
thereupon  he  handed  her  the  glasses  and  asked  her  to  'pick  out  the  men  who  shot 
your  husband.'  After  adjusting  the  glasses,  she  peered  into  the  faces  of  the 
several  men  until  she  came  to  the  accused,  when  she  promptly  identified  them  as 
the  men  who  had  committed  the  crime. ' ' 

85 


OPHTHALMIC  JURISPRUDENCE 

we  express  the  vision  of  that  eye  thus:  Vision  (or  simply  V)  —  20/20 
(20/20,  of  course  =  unity,  or  normal).  If  the  subject  can  read  with 
the  given  eye  at  20  feet  nothing  smaller  than  the  line  numbered  30, 
his  vision  =  20/30,  or  %  the  normal.  If  the  line  numbered  15,  then 
20/15,  or  33^  per  cent,  better  than  even  the  average,  normal,  unas- 
sisted eye — a  power  of  vision  which  is  now  and  then  found.  Thus,  the 
distance  at  which  the  subject  reads  is  always  the  numerator  of  the  frac- 
tion which  expresses  his  visual  power,  and  the  number  of  the  line  that  is 
read  is  the  denominator.  If  the  sight  is  normal  this  fraction  =:  unity 
(20/20)  ;  if  less  than  normal,  the  fraction  is  a  proper  fraction,  and,  if 
more  than  normal,  an  improper  one.  The  vision  of  the  two  eyes  to- 
gether, assuming  that  the  sight  of  each  is  fairly  good,  and  that  it  is 
much  the  same  in  each,  as  in  the  other  eye,  is  often  a  little  better  (a 
fraction  of  a  line,  in  fact)  than  that  of  the  better  eye  alone. 

Inability  to  read  Snellen's  line  numbered  20  at  a  distance  of  20 
feet  (i.  e.,  subnormal  acuity)  may  arise  from  errors  of  refraction 
(which,  in  almost  every  instance,  are  correctable  by  glasses)  by  ob- 
struction to  the  passage  of  the  light  through  the  eye  to  retina  and  optic 
nerve  (as  by  any  opacity  in  the  cornea,  the  aqueous  humor,  the  lens — 
cataract — or  the  vitreous  body)  by  pathological  conditions  of  the  retina 
or  optic  nerve,  the  optic  chiasm,  the  optic  tract,  or,  finally,  the  cerebral 
portion  of  the  visual  apparatus. 

Assuming,  now,  that  the  eye  has  normal  acuity  of  vision  (naturally, 
or  after  correction  by  means  of  lenses  in  case  subnormal  acuity  is  due 
to  an  error  of  refraction)  how  far  can  such  an  eye  (an  eye,  that  is, 
with  20/20  acuity)  perceive  a  man  of  ordinary  height,  out  of  doors,  by 
ordinary  solar  illumination?  According  to  various  experiments,  such 
an  eye  perceives  an  ordinary  man,  in  ordinary  attire,  on  level  ground, 
(assuming  the  observer  himself  to  be  a  man  of  ordinary  height,  and 
with  the  sun  not  in  his  eyes)  at  a  distance  of  31/2  miles.  Brilliant  at- 
tire, exceptional  clarity  of  atmosphere,  very  abundant  sunshine,  and 
unusual  stature  in  either  the  observer  or  the  observed,  may,  combined, 
increase  the  distance  by  as  much  as  perhaps  a  quarter  of  a  mile.  On  the 
other  hand,  dense  fog,  diminished  illumination,  rough  ground,  and 
diminutive  stature  in  either  the  observer  or  the  observed,  reduce  the 
distance  greatly ;  in  fact,  a  fog  alone  may  reduce  it  to  a  very  few  feet. 

Different,  indeed,  is  the  power  to  recognize  from  the  ability  merely 
to  discern.  Here,  also,  two  new  elements  come  in :  First,  presence  or 
absence  of  personal  peculiarities  in  the  observed ;  second,  the  knowledge 
or  the  lack  of  knowledge  concerning  these,  on  the  part  of  the  observer. 
Persons  with  marked  peculiarities  can  be  recognized,  in  broad  daylight, 
by  those  who  know  them  well,  at  110  yards  (100  metres).    A  person 

86 


OPHTHALMIC  JURISPRUDENCE 

of  marked  peculiarities  can  be  recognized  by  one  who  knows  him  only 
slightly,  at  70  to  80  yards.  A  person  devoid  of  peculiarities  can  be  rec- 
ognized by  a  person  well  acquainted  with  him,  at  about  70  or  80  yards. 
Finally,  a  person  devoid  of  marked  peculiarities  can  be  identified  by 
those  who  are  only  slightly  acquainted  with  him,  only  at  the  rather 
surprisingly  short  distance  of  25  to  35  yards. 

As  to  the  smallest  objects  visible  to  the  unassisted  eye,  it  may  be 
observed  that  lines  (not,  of  course,  in  the  geometrical  sense)  are  more 
perceivable  than  are  squares,  circles,  triangles  and  the  like,  presenting 
the  same  identical  extent  of  surface  to  the  eye.  The  smallest  black 
square  on  a  white  ground,  or  white  square  on  a  black  ground,  that  can 
be  seen  by  the  normal  human  eye,  under  ordinary  (indoor  and  indirect) 
solar  illumination,  is  about  the  1/500  of  an  inch.  Brilliant  particles, 
such  as  grains  of  gold-dust,  can  be  perceived  by  the  eye  even  when 
presenting  so  little  area  as  1/1,125  of  an  inch.  "Lines,"  as  stated,  are 
more  perceptibk  than  figures  more  compact.  Thus,  opaque  threads, 
held  between  the  naked  eye  and  a  window  can,  b}^  ordinary,  indirect 
solar  illumination,  be  discerned  though  onlj^  1/4,000  inch  in  diameter. 

2.  By  lightning.  The  question  has  arisen,  especially  in  criminal 
trials,  as  to  the  possibility  of  recognizing  a  person  when  the  only  illumi- 
nation consists  of  a  gleam  of  lightning.  It  arose,  for  example,  in  the 
thread-bare,  if  also  classic,  instance  of  the  lady  who,  returning  home 
from  India,  declared  that  she  saw  distinctly,  and  could  afterward 
identify,  a  man  who  was  "robbing  her  trunk  in  the  cabin  of  a  vessel, 
on  a  dark  night. ' '  Tidy  ^  declares  ' '  that  a  flash  of  lightning  is  in  many 
cases,  but  by  no  means  in  all,  amply  sufficient  for  purposes  of  identifi- 
cation. ' '  Further,  that  he  ' '  was  able  on  one  occasion  to  detect  a  black 
hair-pin  on  the  ground  by  a  flash  of  lightning,  and  to  pick  it  up  when 
the  next  flash  came. ' ' 

3.  By  the  flash  of  firearms.  The  possibility  of  recognition  by 
means  of  the  flash  of  a  firearm  has  also  formed  the  ground  of  questions 
asked  at  a  number  of  criminal  trials.  On  this  head  there  is  little  satis- 
factory information,  thus  far,  to  be  obtained.  Cauvet,  however,  cited 
by  Allen  McLane  Hamilton, ^  sets  forth  the  following  conclusions  as 
having  been  drawn  from  experiments  conducted  by  him:  "(1)  That 
the  person  firing  a  pistol  may  be  recognized  if  the  observer  is  placed 
very  near  him — say  five  paces — and  at  the  side  of  the  line  of  fire;  (2) 
that  he  may  be  recognized  when  the  discharge  has  been  in  a  close  place 
of  small  dimensions,  and  the  observer  is  in  a  stooping  posture  or  squat- 


1  Tidy.     Legal  Medicine,  New  York,  1882,  Vol.  I,  p.  213. 

2  Hamilton  (ed.)  A  System  of  Legal  Medicine,  New  York,  1900,  Vol.  I,  p.  191. 
(Hamilton  gives  no  further  citation  than  merely  the  name  of  Cauvet.) 

87 


OPHTHALMIC  JURISPRUDENCE 

ting^  (3)  that  the  chance  of  distinguishing  the  person  firing  is  affected 
by  the  quality  of  the  powder  employed,  the  best  English  powder  en- 
abling the  observer,  when  near  or  by  the  side  of  the  person  firing,  both 
to  see  and  identify  him." 

4.  By  moonlight.  A  person  with  marked  peculiarities,  illuminated 
by  the  best  of  moonlight,  can  be  identified  by  an  intimate  acquaintance 
no  farther  than  16  to  18  yards. 

5.  By  starlight.  Under  the  clearest  starlight,  however,  no  farther 
than  3  to  4  yards. 

Flashes  of  light  ("stars"  or  "sparks")  from  blows  on  the  head 
cause  no  illumination  of  external  objects;  they  are  "subjective" 
merely.  No  recognition  of  persons  or  things  in  the  external  world  is, 
therefore,  possible  by  means  of  them.  The  matter  would  hardly  seem 
to  be  worth  mentioning,  but  the  question  has  been  actually  asked  of 
expert  witnesses. 

The  condition  of  the  eye  after  death. 

The  special  significance  of  the  ocular  signs  of  death  arises  from  the 
fact  that,  in  lego-medical  investigations,  it  is  now  and  then  desirable  to 
determine  as  nearly  as  possible  the  fact  of  death  and,  occasionally,  the 
very  time  of  death. ^  In  ordinary  circumstances,  the  presence  of  death 
is  easy  enough  to  make  out.  Even  if  a  corpse  is  covered  with  a  sheet, 
there  is  something  in  the  posture,  or  else  in  the  motionless  rigidity  of 
the  limbs,  that  tells  us  almost  unmistakably  that  death  is  b^low.  Some- 
times, however,  the  diagnosis  of  death  is  difficult ;  then  it  is  that  we 
need  the  assistance  of  art. 

The  signs  of  death  relate  to  three  periods:  1,  The  stage  of  transi- 
tion ;  2,  the  cadaveric  state ;  3,  the  stage  of  putrefactive  processes. 
These  terms  do  not  seem  to  require  elucidation. 

The  signs  in  the  stage  of  transition  (to  some  extent  also  in  the 
cadaveric  state)  have  reference  to  four  sets  of  organs:  1,  The  circula- 
tory system ;  2,  the  respiratory  system ;  3,  the  voluntary  muscular  sys- 
tem; 4,  the  eyes. 

Only  the  signs  relating  to  the  eyes,  of  course,  concern  us  here,  and 
further,  even  these  chiefly  in  the  stage  of  transition. 

1.  The  adnexa.  The  skin  of  the  lids  is  pale,  of  course,  as  death 
approaches,  or  actually  sets  in,  excepting  in  certain  diseases,  but  this 
palpebral  pallor  is  of  very  little  value  as  a  sign  of  death.  What  about 


1  As  a  single  instance  of  the  necessity  which  now  and  then  arises  for  estab- 
lishing with  the  utmost  accuracy  the  very  moment  when  death  takes  place,  we  may 
mention  the  case  where  the  descent  of  property  down  one  line  or  another,  depends 
upon  the  answer  to  the  question  of  whether  A  died  first  or  B. 


OPHTHALMIC  JURISPRUDENCE 

the  open  or  closed  condition  of  the  lids?  Much  discussion  has  been 
wasted  on  this  question.  The  matter  as  a  whole,  however,  may  be 
summed  up  thus:  In  cases  of  "natural"  death  (i.  6.,  gradual  dissolu- 
tion as  a  result  of  disease)  the  lids  are  as  a  rule,  just  about  half  open, 
both  during  the  stage  of  transition  and  also  in  the  cadaveric  state. 
Hence,  in  fact,  the  well-known  necessity  of  "closing  the  eyes  of  the 
dead."  In  cases  of  drowning,  on  the  other  hand,  the  lids  are  apt  to  be 
puffed  (edematous)  and  more  or  less  tightly  closed,  while,  after  sud- 
den death  from  gun-shot  wounds,  the  lids  stand  widely  apart.  To  all 
these  rules,  however,  there  are  numerous  exceptions. 

A  deep  groove,  in  the  cadaveric  state,  appears  between  the  upper 
lids  and  the  eyebrows,  but  this  appearance,  too,  is  not  to  be  regarded 
as  a  positive  sign  of  death ;  for  it  sometimes  shows  itself  when  death 
has  clearly  not  occurred,  and,  on  the  other  hand,  is  often  absent  even 
when  the  body  as  a  whole  has  well  advanced  into  the  stage  of  putre- 
faction. 

2.  The  globes.  The  eyeballs,  always  in  the  cadaveric  state  and 
almost  always  in  the  stage  of  transition,  retract,  and  this  sudden  or 
gradual  drawing  backward  of  the  eyeballs  into  their  sockets,  imparts 
to  the  death  agony  one  of  its  most  nearly  characteristic  features.  Never- 
theless, as  a  certain  sign  of  death,  the  retraction  of  the  globes  is  not  at 
all  to  be  trusted.  The  phenomenon,  in  fact,  occurs  in  people  who, 
though  very  sick,  recover,  and,  on  the  other  hand,  in  a  certain  propor- 
tion that  die,  the  appearance  is  either  not  noticed  at  all,  or  else  is 
very  slight.  In  the  stage  of  transition  the  retraction  is  due  to  spasm 
of  the  extrinsic  muscles;  in  the  cadaveric  state,  to  rigor  mortis  of  the 
same  parts.  When  deferred  till  the  cadaveric  state  it  is  one  of  the 
earliest  symptoms  of  that  condition,  for  rigor  mortis  almost  invariably 
sets  in  first  either  in  the  heart  muscle  or  in  the  extrinsic  muscles  of  the 
eye. 

The  direction  which  is  given  to  the  globes  by  the  passage  from 
life  into  death  is  such  that  the  optic  axes  are  rendered  parallel  or  even 
a  little  divergent.  This  is  the  ' '  staring  into  vacancy ' '  of  the  novelists. 
This  sign,  too,  is  not  reliable  as  an  indication  of  dissolution,  because  it 
often  occurs  in  serious  illness  without  death,  while,  on  the  other  hand, 
an  actual  convergence  of  the  visual  axes  has  been  observed,  though 
rarely,  after  undoubted  dissolution. 

3.  The  conjunctiva  and  cornea.  These  structures  become  insensi- 
ble very  early  in  the  stage  of  transition,  but,  because  the  same  thing 
happens  so  often  in  serious  diseases,  the  sign  is  absolutely  worthless. 
The  cornea,  it  is  barely  worth  mentioning,  retains  its  sensibility  longer 
than  does  the  conjunctiva. 

89 


OPHTHALMIC  JURISPRUDENCE 

The  thin  gelatinous  film  which  forms  upon  the  cornea  as  a  person 
dies,  is  one  of  the  more  impressive  phenomena  of  dissolution,  furnish- 
ing indeed,  as  it  does,  the  most  important  element  of  "the  finely  ruined 
eyes  of  death,"  When  this  film  is  seen  to  form,  a  person  is  almost 
surely  dying.  And  yet,  after  all,  not  quite  surely,  for,  as  a  fact,  the 
same  identical  phenomenon  has  been  witnessed  in  the  living — for  in- 
stance, in  the  course  of  serious  cases  of  typhoid,  of  meningitis,  and 
various  cerebral  affections — who  afterward  recovered.  However,  in 
the  living,  it  is  almost  always  accompanied  by  the  tell-tale  symptoms 
of  active  inflammation,  whereas,  in  the  dying  and  the  dead,  the  ex- 
sanguinated vessels  of  the  sclera  and  conjunctiva  give  an  opposite 
account. 

The  film  in  question  is  very  delicate  and  fragile,  and  easily  wiped 
away.  It  seems  to  consist  of  lymph  and  other  fluids,  which  exude 
through  the  ocular  tissues. 

Wrinkling  of  the  cornea  has  also  been  set  up  as  a  characteristic  sign 
of  death.  It  seems  to  be  dependent  on  the  same  transudation  of  intra- 
ocular fluids  that  results  in  the  formation  of  the  corneal  film.  As  a 
result  of  this  transudation,  the  intraocular  tension  diminishes,  and  so 
the  cornea  wrinkles.  The  wrinkling  seldom  becomes  detectable  till  the 
corneal  film  has  pretty  plainly  formed,  hence  the  sign  in  question  is  a 
characteristic  of  the  cadaveric  state  rather  than  the  stage  of  transition. 
Its  value  as  a  sign  of  death  is  therefore  subordinate. 

4.  The  sclera.  The  lethal  discoloration  of  the  sclera  has  been  al- 
leged (like  all  the  other  ocular  manifestations  of  dissolution)  to  be  an 
absolutely  certain  sign  of  death.  This  sign,  however,  considered  alone, 
is  worth  but  little  more  than  any  of  the  other  signs,  perhaps  not  quite 
so  much  as  some  of  them.  It  possesses  the  advantage  (which  is  also 
in  some  respects  a  disadvantage)  of  appearing  very  early.  In  fact,  in 
cholera  patients  it  appears  as  early  as  eight  hours  prior  to  death.  It 
consists  of  a  blackish  discoloration,  which  first  appears  in  the  outer 
scleral  triangle,  i,  e.,  the  space  which  lies  between  the  outer  margin  of 
the  cornea  and  the  two  lid  margins  as  far  as  the  outer  canthus.  Next 
it  appears  in  the  inner  scleral  triangle.  Finally,  it  forms  in  the  por- 
tion of  the  sclera  that  is  covered  by  the  upper,  and  then  in  that  which 
is  covered  by  the  lower  lid.  It  appears  more  rapidly  and  more  certainly 
in  a  warm  than  in  a  cold  room,  and  is  very  often  seen  in  those  who  die 
of  phthisis  pulmonalis  and  typhoid  fever.  It  is  said  to  consist  partly  of 
subconjunctival  eechymosis  and  partly  of  choroidal  pigment.  Its  na- 
ture, in  fact,  has  never  been  exactly  determined. 

5.  The  iris.  When  a  person  dies,  does  his  pupil  contract  or  dilate  ? 
The  question  would  seem  to  be  a  simple  one,  and  one  very  easy  to 

90 


OPHTHALMIC  JURISPRUDENCE 

answer.  Nevertheless,  a  great  deal  of  bitter  controversy  has  been 
waged  about  this  easy-seeming  inquiry.  We  cannot  here  afford  to  re- 
vive a  discussion  which  has  never  appeared  to  be  profitable,  and  which, 
besides,  has  given  excellent  proofs  of  its  own  dissolution.  However,  it 
seems  to  be  pretty  well  settled  that,  at  the  very  moment  of  death,  the 
pupil,  in  the  vast  majority  of  cases,  dilates.  This  dilatation,  however, 
continues  for  a  few  hours  only ;  with  the  setting  in  of  rigor  mortis,  the 
pupil  contracts.  For  one  hour  after  death  the  pupil  responds  to  eserin 
and  atropin ;  but  not  for  any  longer  time.  It  responds  to  galvanism,  in 
many  eases,  for  as  long  as  five  hours. 

6.  The  fundus.  If,  at  the  time  of  death,  or  a  little  while  there- 
after, the  gelatinous  film  upon  the  cornea  be  removed  by  first  moisten- 
ing it  and  then  wiping  it  away,  the  ophthalmoscope  can  be  employed  to 
some  advantage.  By  means  of  this  instrument  it  has  been  determined 
that,  at  the  moment  of  death,  sudden  and  very  striking  alterations  take 
place  in  various  portions  of  the  fundus.  The  papilla  becomes  anemic, 
as  it  were  in  a  flash,  and  the  reddish  color  of  the  remainder  of  the  field 
turns  from  the  normal  red  or  pink  almost  as  suddenly  to  a  sickly  yel- 
low. The  arteries  disappear  entirely,  and  the  veins  become  much 
smaller,  and  rather  irregular  and  broken.  In  all  this,  however,  there 
is  nothing  absolutely  declaratory  of  death ;  similar  conditions  have  been 
observed  in  syncope  and  lethargy. 

Is  there,  then,  no  ocular  symptom  at  all  that  will  serve  as  an  in- 
disputable sign  of  death?  There  is  absolutely  none.  However,  when 
taken  as  a  whole,  the  ocular  signs  of  death  are  well-nigh  incontestable, 
especially  when  supported  by  tests  of  general  character,  such,  for  in- 
stance, as  failure  of  the  heart  and  lungs  to  respond  to  stethoscopic  ex- 
amination, and  failure  of  a  finger  to  become  cyanotic  after  a  ligature 
has  been  tightly  placed  around  it.  Still  more  certain,  of  course,  are 
such  signs  as  general  rigor  mortis,  cooling  and  suggillation  (post- 
mortem lividity)  while,  as  an  absolutely  undeniable  indication  of  death, 
comes  putrefaction.^ 

Post-mortem  optograms. — Among  the  laity  there  obtains  a  be- 
lief that  the  retinas  of  those  who  have  perished  by  assassination  retain 
for  some  time  a  photographic  image  of  such  persons  as  last  appeared 
before  the  eyes  of  these  murdered  people.  A  large  number  of  motion- 
picture  plots  have,  in  fact,  been  built  upon  this  conception.  In  this 
idea,  however,  there  is  only  the  merest  shadow  of  an  atom  of  truth. 
Veruois  (in  1870)  having  made  some  photographs  of  a  murdered  man's 


1  Perhaps  it  may  be  as  well  to  remind  ourselves  that  the  earliest  sign  of  decay 
is  a  spot  of  green  on  the  belly,  generally  in  the  neighborhood  of  the  umbilicus. 
Of  the  internal  organs,  the  liver  is,  as  a  rule,  the  first  to  decay,  the  uterus  the  last. 

91 


OPHTHALMIC  JURISPRUDENCE 

retina,  thought  that  his  pictures  exhibited  the  figures  of  a  man  and  a 
dog  in  the  very  attitude  and  posture  of  attack.  These  photographs  he 
displayed  with  some  pride  to  the  Society  of  Legal  Medicine  in  France, 
and,  in  fact,  to  many  other  physicians  in  other  places;  but,  unfor- 
tunately, he  never  quite  succeeded  in  getting  any  other  medical  person 
to  believe  that  the  pictures  represented  a  man  and  a  dog.  In  fact  the 
pictures,  if  such  they  were,  were  altogether  too  vague  and  indefinite 
to  be  of  any  practical  service  in  the  detection  of  evil-doers. 

Kiihne,  of  Heidelberg,  later  placed  gratings  in  front  of  rabbits, 
then  killed  the  rabbits  very  suddenly  and,  without  any  delay  whatever, 
proceeded  to  make  a  photograph  of  the  retinas  of  these  animals.  Very 
distinct  pictures  of  the  gratings  were  in  some  cases  secured.  How- 
ever, the  killing  of  the  animals  had  to  be  practically  instantaneous,  and 
the  making  of  the  photographs  well-nigh  as  rapid.  A  man  who,  by 
methods  such  as  these,  could  make  successful  pictures  of  murdered 
people 's  retinas  would  have  to  be  upon  the  scene  in  ample  time  to  catch 
the  murderer  by  a  very  much  simpler  plan. 

The  ocular  signs  of  sleep. 

Sleep  is  sometimes  simulated,  but  the  fraud  is  easily  found  out. 
The  eyeballs  in  genuine  sleep,  for  one  thing,  are  nearly  always  abso- 
lutely motionless,  whereas,  when  the  sleep  is  only  feigned,  the  globes 
are  seen  to  move  about  a  little  beneath  the  closed  lids.  If  an  upper  lid 
be  lifted,  the  fact  will  be  observed,  in  genuine  sleep,  that  the  pupils  are 
very  small,  while,  as  the  subject  wakens,  the  pupils  dilate  extremely 
wide,  even  in  the  presence  of  strong  light. 

Ocular  indications  of  poisonimg,  burning,  etc. 

The  effects  of  the  commoner  poisons  on  the  eye  may  be  very 
briefly  stated  as  follows : 

Alcohol. — Conjunctival  injection  and  swelling,  both  in  acute  and 
in  chronic  poisoning.  In  chronic  poisoning,  there  is  present,  in  addi- 
tion, a  paresis  of  the  orbicularis  palpebrarum,  combined  Avith  anesthe- 
sia of  the  cornea,  so  that  involuntary  winking  is  almost  entirely 
abolished;  hence,  "the  fixed,  unwinking  stare"  of  the  hard  drinker, 
when  sober  as  well  as  when  drunk. 

Arsenate  of  copper. — This  chemical  is  employed  in  the  manufac- 
ture of  artificial  flowers,  confectionery  and  in  fancy  baking.  The 
ocular  symptoms  produced  by  this  substance  in  those  who  work  there- 
with habitually,  are  conjunctivitis  and  swelling  of  the  lids. 

Belladomva  and  atropin. — Swelling  of  the  lids,  excessive  lustre  of 

92 


OPHTHALMIC  JURISPRUDENCE 

the  eomeae,  mydriasis,  and  paralysis  of  the  accommodation.  Esoph- 
thalmia  has  been  observed,  as  a  result,  no  doubt,  of  paresis  or  paralysis 
of  the  recti,  together  with  a  similar  condition  of  the  orbicularis,  per- 
mitting the  lids  to  be  widely  separated  by  the  forward-pushing  globe. 

Chloral  hydrate. — The  prolonged  employment  of  this  drug  produces 
conjunctivitis  and  severe  itching  of  the  lids,  inside  and  out. 

Chloroform  and  ether. — During  the  stage  of  excitement,  pupillary 
dilatation.  Thereafter,  progressive  pupillary  contraction.  In  the 
"surgical  state"  the  pupils  are  immobile,  as  well  as  contracted. 

Curare. — Exophthalmia,  conjunctivitis,  and  excessive  lacrimation. 

Digitalis. — Exophthalmia,  together  with  fixity  of  the  visual  axes 
and  conjunctival  injection. 

Illuminating  gas.^ — Diminution  of  visual  acuity,  with  contraction 
of  the  visual  field;  dilatation  of  the  retinal  veins  and  contraction  of 
the  arteries.  Persistent  bilateral  hemianopsia  after  recovery,  has  been 
recorded.  There  is  sometimes  paralysis  of  the  various  ocular  muscles, 
extrinsic  and  intrinsic,  accompanied  or  unaccompanied  by  exophthal- 
mia.   When  the  recti  are  paralysed,  there  is  always  exophthalmia. 

Naphthol-B. — When  used  for  a  considerable  length  of  time,  even 
externally,  this  drug  not  infrequently  produces  cataract  and  various 
alterations  in  the  choroid  and  retina. 

Nicotin. — Exophthalmia  and  corneal  brilliancy. 

Opium  and  its  alkaloids. — ]\Iyosis  and  spasm  of  the  accommoda- 
tion, together  with  dimness  of  the  cornea — producing  the  so-called 
"fishy"  look. 

Prussic  acid. — Exophthalmia  and  diplopia.  After  death,  the  eyes 
are  fixed,  prominent  and  wide  open,  and  are  possessed,  furthermore,  of 
a  singularly  life-like  expression. 

Quinine. — This  drug  sometimes,  in  excessive  doses,  produces  a  pe- 
culiar fundus  condition  known  as  "quinine  amaurosis."  There  is  ex- 
treme contraction  of  the  retinal  arteries,  and  the  papilla  is  very  white. 
Recovery  not  infrequently  occurs,  but  there  is  often  a  permanent  peri- 
pheral contraction  of  the  visual  field. 

Strychnin. — Prominence  of  the  eyes  and  fixity  of  the  visual  axes, 
especially  during  the  convulsions. 

Thyroid  gland. — Optic  neuritis,  followed  by  optic  atrophy. 

Burning — After  extraocular  burns,  the  following  ocular  symptoms 


1 ' '  Nearly  one-half  of  the  accidental  poisonings  in  New  York  City  in  1888-92 
were  by  illuminating  gas,  and  the  same  agent  was  used  by  suicides  more  frequently 
than  any  other  except  paris  green  and  '  rat  poison. '  ' ' — E.  A.  Witthaus  in  Witthaus 
and  Becker's  "Medical  Jurisprudence,  Forensic  Medicine,  and  Toxicoloay,"  New 
York,  1896,  Vol.  IV,  p.  848. 

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OPHTHALMIC  JURISPRUDENCE 

have  been  noted:  retinitis,  chorio-retinitis,  retinal  hemorrhages,  neu- 
ritis and  optic  atrophy. 

Hanging. — Puffing  and  blueness  of  the  eyelids,  exophthalmia, 
and  conjunctival  injection.  Punctate  eechymoses  of  the  conjunctiva 
have  been  observed,  but  not  at  all  so  frequently  as  after  strangulation 
and  suffocation. 

Strangulation  and  suffocation. — Before  death:  The  eyes  are  livid 
and  prominent  and  there  are  often  hemorrhages  from  the  conjunctivae. 
Subjectively,  the  vision  is  lost  soon  after  the  beginning  of  the  process. 
After  death:  Exophthalmos,  redness  of  the  conjunctivae,  and  minute 
conjunctival  eechymoses.  The  punctulation  of  the  conjunctiva  is  said 
to  be  well-nigh  characteristic. 

The  ocular  signs  of  identity. 

Kather  often,  sometimes  even  in  the  dead,  the  eyes  and  their  ad- 
nexa  afford  most  valuable  indications  of  identity.  These  indications 
may  be  classified  as  (1)  anatomical,  (2)  pathological,  (3)  professional. 

1.  The  anatomical  signs. — These  relate  to  the  brows  and  lashes, 
the  lids,  the  irides,  and  the  sclerotics. 

The  hrows  are  seldom  characteristic  of  the  individual,  but  they 
often  afford  some  slight  indications  of  identity.  Thus,  as  to  the  mat- 
ter of  color  and  texture,  it  is  well  known  that  the  structures  in  ques- 
tion vary  from  blond  to  black  and  from  silky-fine  to  exceedingly  harsh 
and  coarse.  Years  do  not  so  often  or  so  early  alter  the  color  of  the 
brows  as  they  do  the  hair  of  the  head.  Af;  to  form,  in  some  individuals 
the  brows  are  straight,  in  others  arched;  when  arched,  they  take,  in 
some,  a  downward  inclination  at  the  outer  ends,  in  others,  an  upward. 
In  some  persons  tliey  unite  at  the  root  of  the  nose  to  form  one  single 
band. 

Changes  in  the  color  of  the  hair  often  occur  naturally.  Children's 
hair  gets  darker  with  increasing  age,  while  the  hair  of  adults  gets 
lighter. 

The  eyebrows  and  lashes,  as  well  as  the  head-hair,  are  now  and 
then  colored  artificially  by  those  who  desire  to  conceal  their  identity. 
Oftenest  employed  for  the  purpose  are  the  salts  of  lead,  silver  and 
bismuth,  in  solution.  The  changes  in  color  are  due  to  the  combination 
of  these  metals  with  the  natural  sulphur  in  the  hair,  forming  the  dark 
metallic  sulphides.  Lampblack,  rubbed  up  with  some  fatty  suostance, 
is  now  and  then  used  as  a  hair-dye. 

The  fact  of  artificial  coloration  of  the  hair  is,  as  a  rule,  very 
easily  detected.  If  lampblack  has  been  used,  washing  the  hair  with 
ether  will  readil}^  expose  both  the  fraud  and  the  natural  color  of  the 

94 


OPHTHALMIC  JURISPRUDENCE 

hair,  since,  when  the  ether  dissolves  the  fatty  substance  which  acts 
as  a  menstruum  for  the  dye,  the  dye  is  no  longer  adherent  to  the  hair, 
but  comes  away  in  the  ether,  leaving  the  hair  in  much  its  natural  con- 
dition. 

To  detect  the  presence  of  a  metallic  dye,  wash  the  hair  in  slightly 
acidulated  water;  then  test  the  water  chemically  for  the  presence  of 
the  metals  above-mentioned — lead,  silver,  and  bismuth. 

The  microscope  is  often  useful  for  the  detection  of  artificial  color- 
ation of  the  hair.  If  fatty  pigments  have  been  employed,  the  micro- 
scope reveals  the  presence  of  the  fatty  particles  plainly.  Sometimes, 
too,  this  instrument  shows  places  on  the  individual  hair  which  the 
dye  has  failed  to  affect. 

The  lashes  are  naturally  pigmented  either  exactly  like  the  browa 
and  the  head-hair,  or  just  a  little  lighter.  They  are  dyed  artificially  in 
the  same  way  as  the  brows  and  the  head-hair,  and  the  fraud  is,  of 
course,  detected  in  precisely  the  same  manner. 

The  lids  afford  a  variety  of  signs.  Thus,  age  is  often  indicated, 
approximately,  by  the  wrinkling  of  the  lids,  especially  at  the  outer  can« 
thi  (''crow's  feet")  and  by  the  puffing  of  the  lower  lid  especially 
C money-bags").  The  skin  of  the  lids  also  thickens  with  age  and  be- 
comes in  color  brownish  or  yellowish. 

The  iris  is  in  infants  nearly  always  of  a  light  blue.  In  later  child- 
hood, however,  it  assumes  thi3  particular  color  which  it  is  to  retain 
throughout  the  whole  life,  excepting  in  senility,  when  the  color 
again  becomes  perhaps  a  trifle  lighter. 

Congenital  anomalies  of  the  irides,  the  chief  of  which  are  colobo- 
mata,  heterophthalmos  (difference  in  hue  of  the  irides  in  the  same 
person)  have  been  considered  in  a  former  portion  of  this  article.  Suf- 
fice it  here  to  remind  ourselves  that  such  distinguishing  peculiarities 
are  possessed  of  the  utmost  value  as  a  means  of  establishing  identity. 

The  sclera  is  in  some  persons  yellow,  in  others  bluish-white,  in  still 
others  clear  white.  These  differences  are  often  racial ;  thus,  the  Jews 
are  noted  for  the  perfect  albugineity  of  their  scleras.  Some  persons 
possess,  congenitally,  spots  of  pigment  in  their  sclerse,  and  these,  of 
course,  possess  much  value  as  a  means  of  identification. 

2.  The  patJiological  signs. — It  would  be  improper  to  attempt  to 
mention  all  the  pathological  conditions  in  the  various  ocular  structures 
which,  on  occasion,  could  become  of  greater  or  less  service  in  the  es- 
tablishment of  identity.  The  chief  pathologic  signs,  however,  are  the 
following :   -Scars  of  all  sorts  in  the  skin  of  the  lids  and  brows ;  ^  se- 


1  Including,  of  course,  the  tattoos  produced  by  explosions  of  fire-damp  and  of 
gun-powder.     On  the  methods  whereby  these  important  kinds  of  tattoos  may  be 

95 


OPHTHALMIC  JURISPRUDENCE 

baeeous  cysts;  slit  canalieuli;  cicatricial  conjunctivae,  resulting  from 
trachoma ;  Pinguecula ;  pterygium ;  cataract  ,•  the  characteristic  scars 
produced  by  the  various  bulbar  operations ;  and,  finally,  the  numerous 
pathological  appearances  of  the  fundus. 

We  ought  to  add  that  lashes  and  brows — as  well  as  the  hair  of  the 
head — have  not  turned  white  from  grief  or  fear  in  a  single  night,^ 
and,  further,  that  hair  is  often  much  darker  on  its  return  after  loss 
during  typhoid  fever  and  other  infectious  diseases. 

3.  Professional  signs. — The  chief  of  these  relate  to  the  various 
sorts  of  dust  produced  in  the  work  of  different  occupations,  and  which 
cling  to  lashes  and  brows,  sometimes  in  spite  of  repeated  washings. 
Thus,  for  instance,  coal-miners,  chimney-sweeps,  firemen,  engineers, 
and  coal-heavers  exhibit  a  dusting  and  staining  of  the  brows  and  lashes 
by  coal  or  soot ;  locksmiths  show  on  the  same  parts  a  dust  composed  of 
copper  filings;  blacksmiths  have  reddened  sclerae  and  numerous  minute 
scars  on  cornea?  and  lids;  millers  and  bakers  carry  flour  in  the  same 
situation,  while  marble-cutters  and  stone-breakers  exhibit,  as  is  well 
known,  on  brows  and  lashes,  a  plentiful  quantity  of  siliceous  dust. 
There  are  many  other  occupations  which  leave  a  characteristic  powder 
on  the  hairs  about  the  eye,  even  the  names  of  which  it  is  not  necessary 
to  mention.  We  should  not  forget,  however,  in  this  connection,  the 
tanned  and  thickened  skin  and  yellowed  and  thickened  conjunctivae 
of  outdoor  workers,  as  well  as  the  special  liability  of  such  persons  to 
Pinguecula  and  pterygium. 

III. 

OPHT  H ALMO-S ANIT ARY  LEGISLATION. 

Ophthalmo-sanitary  laws  in  the  United  States, 

The  laws  enacted  for  the  prevention  of  injuries  to,  and  diseases 
of  the  eye,  are,  in  any  country,  "few  and  far  between."  Nevertheless, 


distinguished,  see  that  division  of  this  article,  entitled  ' '  The  commoner  injuries 
■with  which  the  ophthalmo-surgical  expert  has  to  deal." 

The  tattooing  produced  by  explosions  of  fire-damp  occurs  not  only  in  the  skin 
of  the  lids,  but  also  on  the  conjunctiva  of  the  palpebral,  as  well  as  the  bulbar 
portion.  Thus,  I  had,  at  the  time  of  writing  this  paragraph,  under  treatment,  a 
coal-miner,  on  the  inner  surface  of  whose  right  lower  eyelid  were  plainly  visible 
several  characteristic  marks  (ancient)  produced  by  fire-damp  explosions.  There 
was  not  a  single  spot  of  the  sort  in  any  other  part  of  the  eye,  or  of  the  fellow  eye, 
or  even  on  the  face  or  head.  It  would  be  quite  possible  to  assert,  with  a  high 
degree  of  certainty,  merely  on  the  strength  of  these  tiny  marks,  that  the  subject 
was  a  coal-miner. 

1  Hair  has  now  and  then  appeared  to  turn  white  in  a  very  brief  space  of  time. 
Thus,  in  a  case  that  was  known  to  the  present  writer,  a  lady,  on  the  loss  of  her 
daughter,  decided  to  give  up  the  "vanity"  of  dyeing  her  hair.     When  next  she 

9G 


OPHTHALMIC  JURISPRUDENCE 

such  laws  exist,  and  are  most  conveniently  divisible,  as  regards  America 
at  least,  in  these  two  main  classes : 

1.  Laws  devoted  solely  to  the  prevention  of  injuries  to,  and  diseases 
of,  the  eyes. 

2.  LaM'S  which,  though  embracing  other  matters,  nevertheless  eon- 
tribute  partly  or  indirectly  toward  the  prevention  of  such  injuries  and 
diseases. 

Neither  of  these  kinds  of  laws  can  here  be  treated  in  extenso. 

(1.)  Among  the  most  important  of  the  first  named  enactments  are 
those  relating  to  the  prevention  of  blindness  from  ophthalmia  neona- 
torum. These  are  of  Cleopatra-like  variety — long,  short,  foolish,  wise, 
and  every  one  imperfect.  The  first  jurisdiction  in  which  a  law  of  the 
character  in  question  was  passed  was  Maine  (in  1891 — precisely  ten 
years  after  the  announcement  by  Crede  of  his  marvelous  discovery  ^ ) . 
New^  York  followed  in  1892  (April  18)  and,  on  the  next  succeeding 
day  (April  19)  Rhode  Island  became  a  portion  of  the  goodly  com- 
pany. In  1893  Minnesota,  and,  in  1894,  Ohio  and  Maryland,  fell  in 
line.  Eighteen  ninety-five  was  a  veritable  annus  mirabiUs,  no  fewer  than 
six  states  passing  ophthalmia  neonatorum  laws  within  that  twelve- 
month— a  record  which  was  only  equalled  in  1911.  Today  there  is 
hardly  a  state  in  the  Union  which  does  not  show  some  law,  either  good 
or  bad,  Avorkable  or  unworkable,  on  its  statute  books  or  session  laws 
with  respect  to  the  disease  in  question.  But  the  quality  of  these  laws? 
That  is  a  different  matter.  There  is,  however,  scarcely  a  single  law 
which  does  not  show  forth  some  valuable  provision.  On  the  other 
hand,  there  is  scarcely  a  statute  which  does  not  show  some  serious 
hiatus  or  fundamental  misconception  of  the  very  situation  which  it 
is  the  object  of  the  law  to  improve.  Some  statutes  place  the  entire 
matter  in  the  hands  of  the  State  Board  of  Health.  Others  are  founded 
Avholly  upon  the  very  mistaken  supposition  that  blindness  from  the 
disease  in  question  is  forever  and  eternally  due  to  a  fault  on  the  part  of 
an  ignorant  midwife.  Others  require,  and  properly,  that  physician  or 
midwife,  whichever  has  been  in  attendance  at  the  birth,  shall  report  all 
cases  of  "inflammation  of  the  eyes"  to  a  public  official — for  example, 
"the  parish  health  officer,"  the  drawer  of  the  bill  having  apparently 
believed  that,  the  case  once  "reported,"  the  eyes  would  get  well  of 
themselves.  The  most  important  provision  of  all  is,  in  fact,  almost  uni- 
versally omitted — i.  e.,  the  provision  that  whoever  presides  at  a  birth — 


presented  herself  among  her  friends  her  hair  was  the  color  it  really  had  been  for 
many  years — i.  e.,  snow  white.  However,  the  lady  in  question  at  once  (though  inno- 
cently) acquired  the  reputation  of  having  become  white-headed  through  grief  in 
a  single  night. 

1  See,  in  this  Encyclopedia,  Crede,  Karl  Siegmund  Franz. 

97 


OPHTHALMIC  JURISPRUDENCE 

whether  midwife  or  physician — shall  use  the  Crede  drops,  and  thus 
render  unnecessary  the  making  of  any  sort  or  kind  of  report  or  the 
institution  of  a/tiy  other  sort  or  kind  of  treatment. 

For  a  thorough  discussion  of  the  laws  relating  to  ophthalmia  neona- 
torum, as  well  as  for  a  model  law,  the  reader  is  referred  to  an  article 
by  Dr.  Frank  Allport  in  this  Encyclopedia,  entitled  Ophthalmia 
neonatorum.!  See,  also,  Blindness,  Prevention  of,  Conservation  of 
vision  and  other  pertinent  headings  in  this  Encyclopedia. 

Leaving  the  subject  of  ophthalmia  neonatorum,  about  which  very 
much  more  could  be  said,  here  is  a  very  useful  Connecticut  statute, 
which,  so  far  as  I  know,  has  never  been  copied  into  the  laws  of  any 
other  state.-  "Every  person,  firm  or  corporation  using  stained,  paint- 
ed, or  corrugated  glass  in  factory  windows,  where  the  same  is  injurious 
to  the  eyes  of  the  workmen  therein,  shall  remove  the  same  upon  the 
order  of  the  factory  inspector." 

The  various  laws  requiring  the  use  of  Mowers,  hoods,  etc.,  in 
connection  with  polishing  machines,  etc.,  have  in  view  almost  ex- 
clusively the  protection  of  the  eyes.  Nearly  all  the  states  possess  such 
laws  at  present,  and,  of  these,  the  following  from  New  Jersey  may  very 
well  stand  as  typical:^  "Sec.  14.  All  corporations,  firms  or  persons 
conducting  a  manufacturing  business  .  .  .  where  emery  wheels  or 
emery  belts  of  any  description  are  used,  either  solid  emery,  leather, 
leather  covered,  felt,  canvas,  linen,  paper,  cotton,  or  wheels  or  belts 
rolled  or  coated  with  emery  or  corundum  or  cotton  wheels  used  as 
buffs,  shall  provide  the  same  with  blowers  or  similar  apparatus,  which 
shall  be  placed  over,  beside  or  under  wheels  or  belts  in  such  a  manner 
as  to  protect  the  person  or  persons  using  the  same  from  the  particles 
of  the  dust  produced  and  caused  thereby,  and  to  carry  away  the  dust 
arising  from  or  thrown  off  by  such  wheels  or  belts  while  in  operation, 
directly  to  the  outside  of  the  building,  or  to  some  receptacle  placed  so 
as  to  receive  and  confine  such  dust     ... 

"Sec.  15.  .  .  .  Each  and  every  such  wheel  shall  be  fitted  with  a 
sheet  or  cast-iron  hood  or  hopper  of  such  form  and  so  applied  to  such 
wheel  or  wheels  that  the  dust  or  refuse  therefrom  will  fall  from  such 
wheels  or  will  be  thrown  into  such  hood  or  hopper  by  centrifugal 
force  and  be  carried  off  by  a  current  of  air  into  a  suction  pipe  attached 
to  some  hood  or  hopper. ' '    See,  also.  Blindness,  Prevention  of. 

Thus  much  for  the  legal  enactments  in  the  United  States  tending 


1  Also  to  an  article  by  the  same  writer  in  Ophthalmology,  for  January,  1916. 

2  General  Statutes,  1902,  sec.  4518. 

3  Acts  of  1904,  chap.  64,  sees.  14  and  15.     (Several  of  the  immediately  suc- 
ceeding sections  are  also  interesting  in  the  present  connection.) 

98 


OPHTHALMIC  JURISPRUDENCE 

toward  the  prevention  of  ocular  injuries  and  diseases;  and,  truly,  by 
any  one  who  investigates  this  class  of  our  legislation  at  all  thoroughly, 
it  is  readily  peri^eived  that  in  this  country  there  exists  a  very  great 
need  of  further  determinate  oplithalmo-sanitary  legislation.  For  in- 
stance, the  sale  of  explosives  for  use  on  the  Fourth  of  July  and  other 
holidaijs  should  be  much  more  carefully  restricted,  or,  still  better, 
should  be  prohibited  entirely.  At  present,  nearly  all  such  matters  are 
left  to  local  ordinance,  whereas  each  state  should  enact  a  statute  on  the 
subject,  and  every  state  prosecutor  should  see  that  the  law  is  strictly 
enforced  within  his  territorial  jurisdiction.  A  civil  statute,  making  the 
seller  of  explosives  to  persons  under  age  answerable  in  damages  for  all 
injuries  resulting  from  such  sale,  would  exert,  beyond  question,  an 
extremely  deterrent  effect.  Such  a  law,  for  one  thing,  would  not  de- 
pend for  its  enforcement  on  the  vigilance  of  public  prosecutors. 

Still  another  matter  vainly  demanding  legislative  attention  is  the 
fitting  of  glasses  hy  incompetent  persons.  It  is  not  perhaps  an  exag- 
geration to  say  that  nine-tenths  of  all  the  glasses  fitted,  or  misfitted,  in 
this  country  are  obtained  from  the  hands  of  grossly  ignorant  men,  per- 
sons who  are  not  physicians  in  any  sense  whatever  and  who  have  never 
received  even  the  slightest  medical  training.  Each  of  these  incom- 
petent persons  almost  invariably  makes  himself  known  throughout  the 
community  as  "eye-doctor,"  "eye-specialist,"  "ophthalmologist,"  and 
the  like,  by  which  misnomers  he  succeeds  in  leading  the  public  to  sup- 
pose that  he  is  a  physician  paying  especial  attention  to  diseases  of  the 
eye.  Unfortunately,  legislators,  forgetting  that  the  only  possible  justi- 
fication for  the  narrowness  of  specialism  is  the  broadest  possible  pre- 
liminary training  in  the  different  general  medical  branches  (from 
which  no  specialty  can  properly  be  dissevex'ed,  except  in  the  field  of 
actual  practice)  are  generally,  in  fact  almost  universally,  disposed  to 
regard  the  treatment  of  eye-troubles  by  those  who  are  only  spectacle- 
fitters  as  merely  a  further  and  praiseworthy  development  of  the  modem 
idea  of  specialism.  The  consequence  is  that  legislation,  instead  of 
tending  to  oust  these  people  from  ophthalmic  practice,  tends  yearly 
more  and  more  firmly  to  establish  them  therein.  A  number  of  states 
now  have  legislation,  the  object  of  which  is  to  fence  about  and  safe- 
guard these  unqualified  practitioners.  On  the  other  hand,  the  medical 
profession  (inclusive  of  ophthalmologists)  seems  to  have  gone  sound 
asleep  upon  this  subject.  Many  family  practitioners,  in  fact,  actually 
refer  their  "spectacle  work"  to  the  most  outrageous  quacks,  and  do 
so  as  a  matter  of  routine. ^ 


1  In  an  excellent  paper  by  Dr.  James  A.  Spalding,  of  Portland,  Maine,  read 
at  the  meeting  of  the  Maine  Medical  Association,  July  1,  1913,  entitled  "The 

99 


OPHTHALMIC  JURISPRUDENCE 

Then  another  affair  demanding  attention,  but  very  unlikely  to  get 
it,  is  the  continual  sale  in  enormous  quantities  of  eye-drops,  eye-salves, 
eye-batteries,  and.  the  like,  not  only  by  respectable  pharmacists,  but  also 
by  "wheeling  strangers  of  here  and  everywhere."  ^  In  towns  of  con- 
siderable size  the  institution  should  be  insisted  upon  of  strictly  pre- 
scription drug-stores,  i.  e.,  those  which  do  not  deal  in  fraudulent  medi- 
cines. Then  all  the  physicians  in  the  town  should  send  their  prescrip- 
tions to  such  stores. 

Another  deficiency  in  American  ophthalmo-sanitary  legislation  lies 


Eye:  Its  Connection  with  Diseases  and  Injuries  of  the  Body,"  occurs  the  follow- 
ing very  relevant  passage:  "Hundreds  of  books  and  thousands  of  papers  have 
been  written  in  the  past,  and  will  continue  to  be  written  so  long  as  life  endures 
upon  this  world,  on  the  interdependence  of  the  eye,  and  diseases  and  injuries  of 
the  body.  For  all  that,  the  legislature  of  Maine  saw  fit  four  years  ago  to  set  its 
denial  upon  this  well-known  truth,  and  to  assert  that  there  was  no  connection 
between  the  organ  of  sight  and  the  human  body.  It  will  forever  remain  a  source 
of  regret  that  such  an  ignorant  law  should  have  been  passed,  but  politics,  money, 
a  powerful  and  persistent  lobby  overpowered  our  small  band  of  protesting 
physicians.  So  far,  under  this  law,  nothing  has  been  gained  for  the  i^eople,  the 
medical  profession  has  lost  ground,  and  ignorant,  uneducated  men  are  allowed  to 
practise  one  branch  of  pure,  absolute  medicine  as  they  see  fit.  The  certificates 
imder  which  they  carry  on  this  practice  flaunt  in  the  face  of  the  public  the  false 
assertion  of  'examinations  of  fitness,'  that  have  never  been  passed,  and  in  the 
four  years  of  the  presence  of  this  useless  law  upon  our  statute  books,  not  a  single 
educated  man  has  been  added  to  the  ranks  of  the  exempt  and  often  unfit. ' '  In  the 
experience  of  the  present  writer  a  lawyer  member  of  the  legislature  can  often  be 
reached  (during  the  pendency  of  an  "optometry-"'  bill)  by  the  following  argu- 
ment: What  would  you  think  if  I  were  to  offer  in  this  legislature,  seriously,  a  bill 
proposing  that  persons  who  have  never  secured  a  license  to  practice  law,  should  be 
permitted  to  practice  real  estate  law,  or  personal  injury  law,  or  probate  law,  or 
patent  law,  or  any  other  legal  specialty,  only  after  six  weeks  or  two  or  three 
months  of  study,  of  these  branches  alone  and  the  passing  of  a  so-called  ' '  examina- 
tion ' '  before  a  board,  not  one  member  of  which  was  a  laAvyer  or  had  ever  secured  a 
license  to  practice  law?  The  answer  always  is,  in  effect:  I  would  think  you  did  not 
understand  that  no  one  can  practice  properly  a  legal  specialty  who  has  not 
received  an  all-round  legal  training.  Then  I  answer:  This  same  principle  is  true 
in  medicine — with,  however,  a  very  important  difference,  namely,  that  he  who 
loses  me  my  patent  or  my  farm,  loses  me  what,  comparatively  speaking,  is  "trash," 
while  he  who  loses  me  my  vision  or  my  life  has  made  me  ' '  poor  indeed. ' ' 

1  The  subject  of  the  graduate  optician  (who  not  infrequently  fits  glasses  for 
nephritic  retinitis,  ocular  syphilis,  etc.,  until  the  time  when  a  cure  could  be 
effected  has  forever  gone  by)  the  prescribing  pharmacist,  and  the  wheeling 
stranger  will  not  be  considered  hereafter  in  connection  with  the  laws  of  other 
countries.  Suffice  it  to  say  that,  in  every  civilized  land  on  earth,  so  far  at  least 
as  the  writer  has  been  able  to  ascertain,  the  wail  for  reform  in  these  matters 
goes  up  to  heaven  continually  and  vainly.  Fopulus  vult  decipi.  Thus,  for  a  single 
example,  take  poor  France,  as  voiced  by  Chevallereau  in  the  Encyclopedie  frangaise 
d'ophtalmologie,  Vol.  IX,  p.  777:  "Notre  domaine,  que  d'aucuns  trouvent  et  avec 
raisou  deja  bien  etroit,  est  constamment  envahi  par  un  grand  nombre  de 
braeonniers  qui  exercent  sur  nos  terres  de  veritables  brigandages.  Les  pommades 
et  les  eaux  pour  les  yeux  sent  vendus  par  un  grand  nombre  de  pharmaciens,  qui, 
ici  comme  toujours,  se  trouvent  aux  premiers  rangs  de  nos  concurrents;  les  sceurs 
de  I'hopital  de  Saint-Germain-en  Laye  vendent  une  eau  qui  guerit  la  cataracte; 
un  restaurant  situe  pres  de  la  Bastille  donne  a  qui  en  desire  I'eau  des  Quatre- 
Sergents  qui  guerit  tout.   Ces  exemples  sont  pris  entre  plusieurs  mille. 

"L'humeur  de  nos  confreres  s'est  surtout  elevee  depuis  quelques  annees  centre 
les  opticiens  qui  ne  se  bornent  pas  a  ex6cuter  nos  ordonnances,  mais  prescrivent 
d'eux-memes  et  fournissent  des  verres  pour  tons  les  genres  de  refraction    *    *    *." 

100 


OPHTHALMIC  JURISPRUDENt^S 

in  the  fact  that  in  only  seventeen  states  of  all  our  forty-eight,  have 
statutes  been  enacted,  looking  toward  the  establishment  of  medical 
inspection  of  public  school  children.^  The  states  in  question  are : 
Connecticut  (1899,  with  reference  to  the  children's  eyes  alone),  Massa- 
chusetts (1906,  with  reference  to  both  sight  and  hearing),  Colorado 
(1909,  covering  the  eye,  ear,  nose  and  throat),  Maine,  Pennsylvania, 
Indiana,  Utah,  A'^ermont,  North  Dakota,  West  Virginia,  New  Hamp- 
shire, New  Jersey,  New  York,  Maryland,  Wyoming,  Delaware,  Rhode 
Island.  Of  all  the  defects  found  in  school  children  in  this  and  in 
European  countries,  those  of  vision  are  by  far  the  most  numerous; 
hence  the  importance  from  the  ophthalmic  viewpoint  of  inspection  in 
the  public  schools.  Just  as  in  the  case  of  the  laws  relating  to  oph- 
thalmia neonatorum,  the  school  inspection  laws  are  of  Cleopatra-like 
variety — practical  and  impractical;  serious  and  humorous,  serio-comic 
and  absolutely  farcical.  Tests  for  poor  vision  and  poor  hearing  are, 
in  some  of  the  states,  made  by  the  teacher,  yet,  nevertheless,  much  good 
has  been  accomplished.  Nowhere  in  the  United  States,  so  far  as  I 
know,  are  provisions  made  for  the  institution  of  separate  classes  for 
children  with  defective  sight — like  the  Nehenldassen  of  the  Germans — 
or  separate  schools  for  children  suffering  from  trachoma  ^ — such  as 
exist  in  Italy.  ^ 

Every  state  should,  as  a  matter  of  course,  provide  for  medical  in- 
spection of  its  public  schools,  both  by  general  practitioners  and  by 
specialists.  The  provisions  should  be  absolutely  mandatory  and  state 
wide  in  their  application.  Then,  too,  although  much  should,  as  a  mat- 
ter of  expediency  and  perhaps  necessity,  be  left  to  the  conscience  and 


1  To  be  sure,  a  little  has  been  done,  here  and  there,  by  virtue  of  local  powers. 
Thns,  school  nurses  have  throughout  the  country  been  installed  in  the  public  schools 
of  some  of  our  larger  cities — always,  by  the  way,  with  excellent  results.  See  on 
this  head  The  Value  of  the  Nurse  in  the  Public  School,  by  Thomas  A.  Woodruff, 
M.  D.,  Chicago,  in  the  Bulletin  of  the  American  Academy  of  Medicine,  Vol.  X, 
No.  5,  Oct.,  1909.  A  case  in  Minnesota  holds  that  school  boards  can  enforce  medical 
inspection  by  virtue  of  their  general  powers — i.  e.,  regardless  of  the  existence  or 
non-existence  of  a  statute.  The  reason  given  was  that  "no  system  of  education, 
although  designed  solely  to  develop  mentality,  would  be  complete  which  ignored 
bodily  health."  (State  er  rel.  Stoltenberg  vs.  Brown,  City  Comptroller,  128 
N.  W.  E.  294.) 

2  For  an  example  of  what  can  be  done  where  proper  intelligence  and  determi- 
nation exist,  the  reader  is  referred  to  an  article  hj  F.  W.  Carruth,  entitled 
A  Municipal  Crusade  Against  Trachoma,  No.  Am.  Eev.,  177:  766-74.  This 
crusade  was  nobly  led  by  Dr.  Richard  Derby  and  Dr.  Ernst  J.  Lederle. 

3  An  excellent  article  on  The  Medical  Inspection  of  Public  School  Children  is 
that  by  Dr.  G.  W.  Rice,  of  Champaign,  111.,  in  the  Illinois  Medical  Journal,  for 
March,  1910,  p.  328.  Another  is  that  by  Dr.  Frank  Allport  in  Ophthalmology,  for 
July,  1915,  entitled  State  Legislation  Concerning  the  Examination  of  School 
Children's  Eyes,  Ears,  Noses  and  Throats.  Good  books  on  the  subject  are: 
Kelynack,  Medical  Examination  of  Schools  and  Scholars  (London,  1910) ;  Steven, 
Medical  Supervision  in  Schools  (London,  1910) ;  Cornell,  Health  and  Medical 
Inspection  of  School  Children  (Phila.,  1912). 

101 


OPHTHALMIC  JURISPRUDENCE 

discretion  of  teachers  and  inspectors,  yet  very  much  might  well  enough 
be  made  a  matter  of  certainty  by  hard  and  fast  rules.  Thus.  Javal's 
dictum  that  buildings  surrounding  a  schoolhouse  should  not  stand 
closer  to  the  school  than  twice  their  altitude,  might  very  well  be  insisted 
on  in  every  case.  Again,  such  matters  as  temperature  and  ventilation 
might  be  the  subject  of  fixed  rules.  Inspectors  should  be  required, 
under  appropriate  penalties,  to  see  that  cards  are  issued  to  parents,  di- 
recting the  latter 's  attention  to  any  defects  of  a  physical  nature  oc- 
curring in  their  children.  Monthly  inspections  should  be  required  ^  and 
the  occurrence  of  contagious  diseases  should  be  a  signal,  always,  for 
the  removal  of  the  afflicted  scholar,  or  scholars,  until  such  time  as  his 
or  their  reappearance  could  be  made  without  danger  to  other  persons. 
School  books  should  be  printed  in  type  neither  above  nor  below  certain 
standards  of  size,  and  on  paper  absolutely  opaque  and  of  a  dull  finish. 
Larger  sized  type  should  be  required  for  the  younger  children  and  for 
the  bodies  of  the  pages  than  for  older  students  and  foot-notes.^  In 
towns  of  a  thousand  or  more  inhabitants  there  should  be  separate 
schools,  or  classes,  for  children  with  defective  vision — less,  say,  than 
1/5.  Indigent  children  needing  glasses  should  have  these  furnished  at 
the  public  expense."  As  to  school  furniture,  the  front  edge  of  the  seat 
should  be  required  to  extend  not  less  than  2  nor  more  than  4  inches 
forward  of  the  back  edge  of  the  desk ;  the  seat  should  be  at  an  approxi- 
mate distance  from  the  desk  of  %  the  pupil's  height;  the  top  surface 
of  the  desk  should  be  inclined  in  the  direction  of  the  pupil  at  an  angle 
of  15°  to  20° ;  and  certain  other  regulations  relative  to  school  furni- 
ture, not  possible  to  be  mentioned  here,  should  be  made  the  subject  of 
statutory  enactment.  Finally,  in  towns  or  cities  with  populations  ex- 
ceeding ten  thousand,  school  nurses  should  be  employed,  and  should 
be  vested  with  appropriate  and  adequate  authority.^ 

(2.)  Laws  which  only  indirectly,  or  partly,  have  for  their  object  the 
prevention  of  eye  diseases  and  injuries.^ 


1  Our  active  little  neighbor  across  the  Pacific  got  round  to  this  many  years  ago. 

2  The  ophthalmic  section  of  the  American  Medical  Association  should,  in  fact, 
draft  a  circular  to  be  sent  to  every  publisher  of  books  of  any  sort  or  kind  within 
this  country,  suggesting  (with  reasons)  that  the  use  of  glossy  papers  in  books  be 
discontinued,  saving  and  excepting  solely  when  the  presence  of  half-tones  renders 
the  employment  of  glossy  paper  indispensable.  Suggestions  should  also  be  made 
with  regard  to  "leading"  and  to  the  size  of  type,  both  for  body-work  and  for 
footnotes.  Publishers  are  exceedingly  careless  with  regard  to  these  matters, 
particularly  with  regard  to  the  unnecessary  use  of  glossy  papers. 

3  By  which  I  do  not  mean  at  the  expense  of  some  individual  oculist. 

4  For  a  full  discussion  of  the  general  subject,  as  well  as  a  model  law,  see,  in  this 
Encyclopedia,  Medical  Inspection  of  School  Children,  also  Conservation  of 
Vision. 

5  Unfortunately,  the  employer 's  liability  law  which  has  been  enacted  in  Ger- 
many (das  Unfallversicherungsgesetz)  and,  with  certain  modifications,  in  various 

102 


OPHTHALMIC  JURISPRUDENCE 

Of  these  the  most  important  by  far  are  those  relating  to  vaccina- 
tion, since  variola  is  extremely  prolific  of  blindness,  even  in  mild  cases 
of  the  disease.  It  would  be  superfluous  to  mention  the  various  re- 
quirements in  the  several  states  ^  relating  to  the  vaccination  of  school 
children,  but  it  is  well  worth  knowing  that,  in  Connecticut,  Maine, 
and  Virginia,  laws  are  in  force  which  require  the  vaccination  of  work- 
men under  certain  (generally  too  limited)  circumstances. 

Maine  has  the  most  explicit  law  on  the  subject,  but  restricts  its  appli- 
cation to  paper  mills.  Thus:  ^  "Sec.  83.  No  owner,  agent  or  super- 
intendent of  any  paper  mill  where  domestic  or  foreign  rags  are  used 
in  the  manufacture  of  paper  shall  hire  or  admit  any  person  to  work 
in  or  about  said  mill  who  has  not  been  successfully  vaccinated  or  re- 
vaccinated  within  two  years,  or  to  the  satisfaction  of  the  local  board 
of  health. 

"Sec.  84.  No  person  shall  work  in  or  about  any  paper  mill  where 
rags  are  used,  who  has  not  been  successfully  vaccinated  or  revaccinated 
within  two  years,  or  to  the  satisfaction  of  the  local  board  of  health." 

The  fine  for  violation  of  either  of  these  provisions  is  restricted  to  a 
maximum  of  fifty  dollars.  Moreover,  there  is  no  minimum  limit  what- 
ever, and  the  fines  are  almost  always  too  light.  It  is  easy  enough  to 
see  why  the  employes  in  and  about  paper  mills  should  be  the  especial 
objects  of  vaccinial  legislation,  but,  certainly,  the  law  should  be  ex- 
tended so  as  to  apply  to  many  other  classes  of  workmen. 

Connecticut's  law  upon  the  subject  is  also  limited  in  its  application 
to  paper-mill  employes.  Further,  it  is  altogether  too  short  and  un- 
explicit."^ 

Virginia  limits  the  application  of  her  vaccination  statute  *  to  "Any 


other  lands  (England,  France,  et  al.)  has  never  been  copied,  except  as  to  a  few 
of  its  features,  into  the  laws  of  the  United  States  or  of  those  of  any  of  the 
separate  States.  This  law  (Unfallversichcrungsgesetz)  which  makes  the  employer 
liable  at  all  events,  (i  e.,  irrespective  of  such  questions  as  contributory  negligence, 
fault  of  fellow- workmen,  assumption  of  risk,  etc.),  for  accidents  to  his  employes, 
has  had  a  most  excellent  effect  in  the  way  of  preventing  injuries  to  workmen; 
for,  when  employers  know  themselves  to  be  responsible  for  such  injuries  at  all 
events  they  take  the  utmost  pains  to  prevent  the  occurrence  of  accidents.  On  the 
other  hand,  in  some  of  the  United  States  (a  nation  of  extremes)  the  Workmen's 
Compensation  Act  has  been  a  source  of  oppression  to  employers. 

For  an  excellent  and  somewhat  copious  discussion  of  this  subject,  the  reader 
is  referred  to  the  series  of  articles  by  Dr.  W.  H.  Allport,  of  Chicago,  in  the 
Illinois  Medical  Journal,  for  Oct.,  Nov.  and  Dec,  1909,  entitled  Studies  in  Con- 
temporary Workmen's  Compensation. 

1  Once  again,  however,  nothing  at  all  seems  able  to  ' '  stale ' '  their  ' '  infinite 
variety."  A  uniform  and  comprehensive  law  is  badly  needed.  The  right  of  the 
various  state  legislatures  to  enact  compulsory  vaccination  laws,  was  upheld  in 
Jacobson  vs.  Massachusetts  (197  U.  S.,  11). 

"i  Revised  Statutes,  1903,  Chap.  18. 

3  General  Statutes,  1902,  Sec.  4693. 

4  Code,  1904,  Sec.  1743e. 

103 


OPHTHALMIC  JURISPRUDENCE 

person,  firm  or  corporation  employing  large  bodies  of  laborers  in  the 
state  of  Virginia  constructing  works  of  public  improvement.     .     .     ." 

The  laws  of  the  United  States  and  also  of  the  separate  states  com- 
prise, nevertheless,  a  rather  large  number  of  provisions,  the  object  of 
which  is,  at  least  in  part,  to  prevent  the  occurrence  of  injuries  to,  and 
diseases  of,  the  eye.  Thus,  in  some  states,  the  shuttles  which  shoot  to 
and  fro  in  weaving  mills  must  be  guarded  from  flying  out  of  the  looms 
— which,  by  the  way,  they  sometimes  do  at  all  events,  often  with  disas- 
trous consequences  to  the  eyes  of  those  who  are  working  near.  Thresh- 
ing machines,  also,  are  generally  required  to  be  so  protected  that  no 
"joint,  knuckle,  or  jack"  thereof,  "is  dangerously  exposed."  Persons 
charging  any  "hole  with  nitroglycerin,  powder,  or  other  explosive"  are 
usually  forbidden  to  "use  any  steel  or  iron  tamping  bar  "  Profes- 
sional shot-firers  are  quite  uniformly  required  to  shoot  down  the  coal 
in  mines  "employing"  for  instance  "twenty  or  more  miners  to  work 
in  the  same. ' '  The  various  regulations  requiring  an  adequate  supply 
of  outer  air  in  mines,  both  for  breathing  purposes  and  also  for  the 
prevention  of  explosions  due  to  the  accumulation  of  fire-damp,  those, 
also,  providing  for  a  sufficient  number  of  adequate  escape  shafts,  for 
improved  safety  catches,  for  ' '  experienced,  competent,  and  sober  men ' ' 
to  have  "charge  of  hoisting  apparatus  and  engines" — all  these  and 
many  similar  regulations  have  a  tendency  to  prevent  the  occurrence 
of  injuries  to  the  eyes  as  well  as  to  other  portions  of  the  body.  Then 
there  are  numerous  regulations  relating  to  railways,  steamboats,  steam- 
ships, the  construction  of  buildings,  etc.,  which  cannot  here  even  be 
mentioned  by  title,  partly  because  of  lack  of  space,  partly  because 
of  the  high  degree  of  technicality  of  many  of  the  matters  involved. 
The  necessary  laws  relating  to  the  manufacture  of  wood  alcohol  (a 
substance  productive  of  often  incurable  blindness)  are  yet  to  be 
enacted.  (See,  upon  this  head.  Wood  alcohol;  Columbian  spirits; 
Alcohol,  Methyl;  Methyl  alcohol  and  Toxic  amblyopia,  in  this 
Encyclopedia.) 

Before  we  leave  this  subject  we  ought  to  remind  ourselves  that  all 
the  various  laws  which  tend  to  shorten  the  hours  of  labor,  and  which 
limit  or  prevent  the  improper  employment  of  women  and  children  i^ 
industrial  occupations  are  all — so  far  as  enforced — of  a  very  high 
degree  of  value  not  only  in  the  prevention  of  diseases  and  accidents 
generally,  but  also  of  those  which,  either  directly  or  indirectly,  have 
reference  to  the  eye.^ 


1 A   nondescript  matter  of   some   importance   to   ophthalmologists   may  here, 
though  slightly  irrelevant,  be  mentioned,  because  it  belongs  still  less  within  the 

104 


OPHTHALMIC  JURISPRUDENCE 

Passing  to  the  ophtlialmo-sanitary  regulations  prevailing  in  other 
countries  than  oar  crwn  we  first  consider  the 

Ophthalmo-sauitary  laivs  of  England. 

First  of  all,  there  exists  in  England,  as  already  suggested  in  a  foot- 
note to  this  article,  a  Workmen's  Compensation  Act  (1906)  by  which 
is  placed  upon  all  employers  a  tremendous  pecuniary  responsibility  for 
the  safety  of  their  men.  One  effect,  among  mauy,^  of  this  act,  has 
been  to  diminish  in  a  most  remarkable  degree  the  number  of  accidents 
to  laboring  men  in  England.  The  act  provides  for  compensation  not 
onlj^  after  industrial  accidents,  but  also  in  case  of  the  development  of 
certain  specified  industrial  diseases,  for  example  miner's  nystagmus 
and  bottle-maker's  cataract.  In  addition  to  this  splendid  piece  of 
legislation,  there  exists  a  "Factories  and  Workshops  Act"  (1901) 
which  has  also  proved  beneficial.  It  prescribes,  among  other  matters, 
that  every  factory  must  be  clean,  have  a  certain  amount  of  air-space 
for  employees,  provide  adequate  ventilation,  be  of  proper  temperature, 
and  possess  adequate  and  appropriate  sanitary  accommodation.  There 
are  special  regulations  relating  to  all  persons  working  in  poisonous 
substances  or  in  conditions  dangerous  by  reason  of  steam,  machinery, 
fumes,  etc. 

With  regard  to  vaccination,  there  is  ample  provision  for  this  in 


scope  of  any  of  the  other  main  divisions  of  this  article.  I  refer  to  the  drawing 
of  wills  for  the  blind.  The  fact  of  the  testator's  blindness  should  plainly  be 
noted  in  what  is  called  the  attestation  clause — i.  e.,  a  brief  passage  which  stands 
at  the  close  of  the  will,  and  which  is  signed  by  the  witnesses.  A  proper  attesta- 
tion clause  for  the  will  of  a  blind  person,  good  in  any  state,  is  the  following: 

"The  foregoing  instrument,  consisting  of sheet. .,  was,  on  this 

day  of ,  nineteen  hundred  and ,  first  read  over  to  the  tes- 
tator in  our  presence,  he  (or  she)  being  blind,  and  was  then,  upon  the  said  date, 
and  forthwith,  signed,  sealed,  published  and  declared  by  the  said  testator  to  be 
his  (or  her)  said  last  will  and  testament,  in  the  presence  of  each  of  us,  the 
undersigned,  who  thereupon,  at  his  (or  her)  request,  and  in  his  (or  her)  presence, 
and  in  the  presence  of  each  other,  have  hereunto  subscribed  our  names  as  the 
attesting  witnesses  thereof,  the  day  and  year  last  above  written. 


Many  attorneys  fail  to  insert  the  words  above  italicized.  These  words,  how- 
ever, are  very  important  to  be  remembered  in  the  case  of  a  will  made  by  a  blind 
person,  for  the  law  does  not  ordinarily  require  that  a  will  shall  have  been  read 
to  the  testator  in  the  presence  of  those  who  are  to  sign  the  document  as  witnesses. 
Yet,  without  the  words  above  suggested,  or  words  of  similar  import,  the  question 
of  fraud  may  be  raised. 

1  Dr.  A.  Maitland  Eamsey,  of  Glasgow :  ' '  The  design  of  the  f ramers  of  the 
Act  was,  undoubtedly,  to  minimize  the  need  for  legal  procedure;  but  their  purpose 
in  this  respect  has  not  been  achieved,  for  no  statute  of  recent  times  has  been 
more  provocative  of  litigation." — "Eye  Injuries:  With  Special  Beference  to  the 
WorTcmen's  Compensation  Act,  1906,"  p.  4;  reprint  from  The  Hospital,  Nov.  13, 
20,  1909.  This  article,  by  the  way,  is  a  valuable  contribution  to  the  literature  of 
' '  Visual  economics. ' ' 

105 


OPHTHALMIC  JURISPRUDENCE 

general,  but  any  child  can  be  withheld  from  what  has  been  called  ' '  the 
terrible  torture  of  vaccination"  if  its  parent,  or  any  responsible  person 
standing  in  loco  parentis,  avows  before  a  magistrate  that  he  disbelieves 
in  the  efficacy  of  the  process.  No  machinery  is  provided  for  revac- 
cination  {per  contra  in  Germany  and  especially  in  Italy). 

England  was  the  first  of  all  the  nations  to  provide  for  medical  in- 
spection in  the  public  schools  (1872)  ;  nevertheless  in  her  system  of 
inspection,  even  at  the  present  day,  there  is  much  to  be  desired. 

The  medical  inspection  of  school  children  is,  in  England,  placed  in 
the  hands  of  the  Sanitary  Department  of  the  local  Government  Board, 
the  Board  of  Education  having  delegated  the  work  to  them.  The  "ma- 
chinery" is  said  to  be  very  defective.  There  are  no  requirements  at  all 
for  admission,  but  the  eyes  of  all  children  in  "State"  schools  are  tested 
after  entrance.  No  arrangement  has  ever  been  made  for  treating  or  re- 
testing. 

Some  special  arrangements  have  been  made  for  school  children  who 
see  poorly,  but  nothing  of  an  adequate  nature.  It  is  likely,  however, 
that  better  arrangements  will  be  made  soon. 

"With  respect  to  ophthalmia  neonatorum  we  may  say  that  the  use  of 
Crede-drops  is  not  at  all  compulsory  on  the  part  of  either  medical 
man  or  midwife.  In  case  the  mother  was  delivered  by  a  midwife,  and 
any  inflammation  or  discharge  appears,  the  midwife  is  obliged  to  report 
the  fact  at  once  to  "any  qualified  medical  man,"  the  choice  of  the 
particular  man  being  left  to  her.  In  England,  then,  it  seems,  as  in 
this  country,  a  case  of  blindness  from  ophthalmia  neonatorum  is  ever 
the  fault  of  a  midwife.  It  is  somewhat  singular  that,  in  the  course 
of  my  entire  practice,  which  embraced  a  considerable  number  of  eases 
of  the  absolutely  unnecessary  disease  in  question,  there  was  not  one 
single  case  which  was  not,  indisputably,  the  fault  of  a  regularly  grad- 
uated physician. 

Ophthalmo-sanitary  laws  in  France. 

In  France,  as  in  England,  there  exists  an  excellent  Workmen's 
Compensation  Act  (that  of  Feb.  9,  1898),  which  has  been  amended 
and  revised  until  as  late  as  March  31,  1905. 

As  this  law  now  stands,  it  provides  for  indemnity  after  industrial 
accidents  {accidents  clu  travail)  no  matter  to  whom  the  occurrence  of 
such  accident  is  due,  excepting  only  when  demonstrably  the  result 
from  the  inexcusable  negligence  of  the  injured  person  himself.  This 
law  applies  to  all  industries  operating  in  any  way  by  means  of  ma- 
chinery, excepting  only  such  machinery  as  is  run  by  man-  or  auimal- 

106 


OPHTHALMIC  JURISPRUDENCE 

power.  Further,  the  work  of  the  injured  employe  must  be  interrupted 
for  more  than  four  days. 

Twenty-four  hundred  francs  is  the  maximum  earning  capacity 
which  is  used  as  a  basis  for  full  computation ;  all  overplus  is  computed 
at  one-fourth.  For  partial  or  temporary  disability  the  workman  re- 
ceives one-half  the  reduction  in  his  wages;  for  total  and  permanent 
disability,  a  pension  equal  to  two-thirds  the  amount  of  his  earnings. 
Pensions  are  revisable,  after  three  years,  the  degree  of  disability  being, 
of  course,  in  many  cases  subject  to  change. 

In  case  of  the  workman's  death,  100  francs  is  paid  as  funeral  ex- 
penses. Then,  in  addition,  a  pension  of  20  per  cent,  of  the  wages  of 
the  deceased  is  allowed  to  the  widow,  and,  to  the  orphans,  40  per  cent, 
for  the  loss  of  one  parent  and  60  per  cent,  for  both.  Dependent  rela- 
tives, if  there  be  no  surviving  child  or  widow,  may  receive  a  pension 
equal  to  30  per  cent,  the  wages  of  the  deceased. 

Objection  has  often  been  made  that  the  law  in  question  has  rendered 
difficult  the  securing  of  employment  by  married  persons,  especially  if 
these  have  children.  A  further  objection  is  sometimes  otfered  that  it 
provides  no  compensation  for  disfigurements  which  do  not  interfere 
with  the  earning  capacity.  In  general,  however,  the  law  has  been  sat- 
isfactory (like  similar  laws  in  other  lands)  not  merely  to  employes  but 
also  to  employers. 

In  addition  to  the  Workmen's  Compensation  Act — which  has  proved 
so  beneficent  in  the  way  of  preventing  injuries  of  almost  every  kind — 
there  exist  in  France  numerous  laws,  or  regulations,  for  the  preven- 
tion of  accidents  and  diseases.  These  provide  for  adequate  heating, 
lighting  and  ventilation  in  factories,  etc.,  for  cleanliness,  for  proper 
water-closet  facilities  and  protection  from  the  action  of  numerous 
poisons  (lead,  methyl  alcohol,  etc.)  and  from  steam,  heated  metals, 
electricity  and  various  sorts  of  machinery.  All  these  matters  are 
under  the  control  of  the  Ministry  of  Labor. 

Vaccination  is  compulsory  for  all  persons,  civil  and  military,  and 
revaccination  for  the  military. 

All  contagious  diseases  must,  in  a  manner  of  speaking,  be  reported. 
"Facultatively"  reportable^  are  the  conjunctivitis  purulenta  of  adults 
and  ophthalmia  granulosa.  Among  the  diseases  for  which  are  required 
both  reporting  and  disinfection,  is  ophthalmia  neonatorum.^ 

There  is,  in  France,  an  excellent  system  of  medical  inspection  in 
the  public  schools.  The  medical  inspector  does  not,  indeed,  himself 
take  charge  of  the  treatment  of  the  ailing  children,  but  he  is  obliged  to 


1  Decree  of  Feb.  10,  1903. 

2  Law  of  Feb.  15,  1902,  art.  4. 

107 


OPHTHALMIC  JURISPRUDENCE 

report  to  parents  the  physical  defects  of  such  of  their  offspring  as  are 
attending  the  public  schools;  and  the  parents  take  the  child  to  some 
physician  of  their  choice.  However,  (and  this  is  a  point  worthy  of 
extensive  imitation)  the  parents  are  obliged  to  see  that  the  child  is 
treated,  and  by  some  registered  physician.  The  child  cannot  return  to 
school  without  the  permission  (after  careful  examination)  of  the  medi- 
cal inspector. 

There  are  no  separate  schools  or  classes  for  trachomatous  pupils, 
the  reason,  as  stated  by  an  eminent  French  authority,^  being  that 
trachoma  in  France  is  not  a  sufficiently  common  disease  to  render  such 
arrangements  necessary.  The  rule  is  to  permit  to  remain  in  the  schools 
all  trachomatous  pupils  exhibiting  little  or  no  conjunctival  secretion, 
and  to  remove  all  those  in  whom  these  secretions  are  particularly 
abundant. 

The  prescription  of  glasses  for  school  children  is  looked  after,  when 
necessary,  and,  in  some  cities,  children  who  see  poorly  are  grouped  in 
special  classes.  Special  schools  for  children  with  defective  sight  are 
not  established,  because,  it  is  said,  of  the  distance  which  children  of 
this  sort  would  then  be  obliged  to  go  in  order  to  get  to  school. 

The  hygiene  of  the  lower  schools  is  controlled  by  local  boards,  that 
of  the  high  schools  by  the  Ministry  of  Public  Instruction. 

Midwives  are  obliged  to  report  at  once  any  discharge  or  inflamma- 
tion from  the  eyes  of  an  infant.  The  report  is  made,  in  Paris  and 
Lyons,  to  the  prefecture  of  police;  elsewhere,  to  the  "maire."  The  use 
of  Crede-drops  is  compulosry  in  all  cases,  irrespective  of  discharge  or 
inflammation. 

Finally,  "le  livret  a  famille"  hands  to  all  newly  married  couples  a 
printed  card,  or  circular,  containing  instructions  with  regard  to  the 
above-mentioned  and  various  other  matters. 

Ophthalmo -sanitary  legislation  in  Oermany. 

In  Germany,  as  one  might  readily  suppose,  the  subject  of  ophthalmo- 
sanitary  legislation  has,  in  common  with  sanitary  legislation  of  a  gen- 
eral character,  received  a  good  deal  of  attention.  It  would  be  impos- 
sible to  elucidate  completely  here  even  the  more  salient  matters  of  this 
kind  of  legal  enactments  in  Germany,  but  a  few  of  the  more  peculiar 
(and,  at  the  same  time,  I  think,  sensible  and  scientific)  features  may 
simply  be  pointed  out,  practically  unaccompanied  by  comment. 

The  Prussian  sanitary  corps  is  organized  as  follows:    Each  county 


1  Chevallereau,  in  EncyJopedie  franqais  d'oplitalmologie.  Paris,  1910,  Vol.  IX, 
p.  545. 

108 


OPHTHALMIC  JURISPRUDENCE 

(Kreis)  has  its  Kreisarzt,i  or  official  physician,  for  the  county.  Next 
each  province  has  its  "Provinzial-Medizinal-Collegium,'^  or  Provincial 
Medical  College.  Over  this  is  the  "  Wissenschaftlichc  Deputation,"  the 
highest  consulting  body  of  the  corps.  This  last-named  body,  however, 
is  a  branch  of  the  ''Abteilung  filr  die  Medizinalangelegenheiten" — it- 
self a  branch  of  the  ministry  '^der  geistlichen  Unterrichts-und  Medic- 
inal-AngelegenUeiten."  In  addition  to  all  these  there  exists  in  certain 
cities  " GericMsarzte,"  or  "Physicians  before  the  Courts,"  who  are 
often  called  upon  as  experts  by  the  State's  Attorney. 

Taken  altogether,  the  medical  corps  is,  in  Prussia,  a  many-ranked 
hierarchy.  Its  work,  however,  I  understand,  is  very  thoroughly  car- 
ried out. 

Vaccination,  to  begin  with  one  of  the  most  important  matters,  is 
absolutely  compulsory  in  the  first  year  of  life,  and  re-vaccination  in 
the  twelfth. 

Trachoma,  diphtheria,  small-pox  (the  little  there  is  to  be  found  of 
this  last-mentioned  disease)  must  be  reported  to  the  police  on  official 
cards  throughout  Germany.  There  is  also  a  Prussian  law^  which, 
during  epidemics,  renders  obligatory  the  treatment  of  certain  diseases, 
among  which  trachoma  is  here  especially  noteworthy. 

The  use  of  Crede-drops  is  nowhere  compulsory,  but  a  peculiar  fea- 
ture of  the  law  relating  to  ophthalmia  neonatorum  (characteristically 
German,  too,  though  a  similar  practice  now  prevails  in  France)  is  that 
in  many  of  the  cities,  notably  Berlin,  printed  instructions  concerning 
the  matters  in  question  are  handed  over  to  newly  married  couples.^ 
In  some  of  the  cities  the  printed  card  is  not  handed  over  until  the  first 
birth  is  reported — when,  of  course,  it  could  do  no  good  in  the  way  of 
prophylaxis,  unless  indeed  as  to  the  eyes  of  later-born  children. 

The  medical  inspection  of  the  public  schools  is  very  different  in 
different  localities.  All  the  larger  and  many  of  the  smaller  towns 
employ  "school-doctors"  not  only  for  the  public,  but  also  for  some 
of  the  private  schools — gymnasiums,  etc.  In  Berlin  there  are  56 
school-doctors,  each  controlling  about  5,000  children.^  All  children 
are  tested  when  they  enter,  and  at  intervals,  later.     Whenever  the 


1  The  classic  work  on  the  functions  of  the  Kreisarzt  is  Sehloekow,  "Ber 
Kreisarst."  In  general,  these  functions  are  to  supervise  all  public  sanitary 
institutions,  asylums,  etc.,  also  the  registers  of  physicians,  pharmacists,  mid- 
wives,  etc.     Their  court-work  is  restricted  to  certain  police-evidence. 

2  That  of  Aug.  28,  1905. 

3  One  can  hardly  conceive  of  such  highly  sensible,  albeit  blush-producing, 
measures  being  adopted  in  the  land  of  the  free  and  home  of  the  brave  and  often 
unnecessarily  blind. 

4 1  am  credibly  informed  that  each  of  these  ' '  school-doctors ' '  in  Berlin  is 
paid,  for  looking  after  his  5,000  youngsters,  only  2,000M.  annually — less  than 
500  dollars! 

109 


OPHTHALMIC  JURISPRUDENCE 

necessity  exists,  the  children  are  sent  to  public  or  private  dispensaries. 
"When  the  parents  are  poor,  the  children's  glasses  are  paid  for  by; 
the  city. 

Children  with  defective  vision  are  put  into  extra  classes— the  so- 
called  "Nehenklassen."  The  results  of  this  arrangement  are  exceed- 
ingly satisfactory.  However,  the  vision  must  be  less  than  1/10,  which 
is  a  slight  drawback.  Other  children  are,  as  with  us,  turned  over  to 
the  blind-schools.  The  treatment  of  the  children  is  compulsory  on  the 
parents.  A  doctor  treating  a  case  of  trachoma  must,  as  above-men- 
tioned with  regard  to  trachoma  in  general,  report  the  case  to  the 
police  on  an  official  card.^  The  police  re-report  the  matter  to  the 
Kreisarzt,  and  this  latter  functionary  sees  that  the  patient  takes  his 
treatment  and  that  the  doctor's  various  instructions  are  actually  car- 
ried out. 

Indirectly  tending  toward  the  prevention  of  injuries  to,  and  dis- 
eases of,  the  eye,  is  the  excellent  Unfallvcrsicherungsgesetz,  which,  as 
already  mentioned,  has  been  so  widely  copied  in  the  legislation  of  other 
lands.  It  would  be  impossible  here,  owing  to  limits  of  space,  even  to 
sketch  in  outline  this  very  thorough  and  far-reaching  law;  we  may, 
however,  direct  attention  to  a  few,  only,  of  the  most  characteristic 
features. 

The  law  provides,  then,  in  effect,  for  the  insurance  of  all,  or  nearly 
all,  workmen  by  their  employers.  The  system  consists  of  two  divisions 
— the  federal,  and  the  state.  The  federal  division  is  organized  as  a  de- 
partment of  the  Bureau  of  the  Interior.  The  state  divisions  are  organ- 
ized as  bureaus  of  insurance  in  each  of  the  Bundesstaaten.  The  state 
bureaus  control  the  industries  within  the  state,  and  the  federal  bureau 
those  of  a  national,  or  interstate,  character.  Every  bureau — the  fed- 
eral bureau,  as  well  as  the  different  state  bureaus — "collects  statistics, 
makes  rules,  and  constructs  reports,  and  serves  as  a  court  of  final  ap- 
peal." Subordinate  to  the  various  bureaus  are  the  "Courts  for  Indus- 
trial Claims,"  the  personnel  of  which  consists  of  one  government 
official  (President)  and  two  representatives  each,  from  the  employers 
and  the  workmen.  These  courts  appoint  medical  examiners  who  make 
reports  and  who  also  testify  before  the  court,  if  there  be  necessity 
therefor.  The  parties  themselves  may  choose  the  expert,  if  they  so 
desire.    There  is  no  jury. 

The  fund  from  which  the  claims  are  paid  is  held  by  trustees,  and 
is  composed  chiefly  of  assessments  paid  into  the  fund  at  stated  inter- 
vals by  the  various  employers  of  the  nation,  grouped  into  definite  units. 


1  Teutonically  thorough  is  the  requirement  that  complications,  origin,  nativity, 
and  many  other  matters  must  be  stated  on  the  card. 

110 


OPHTHALMIC  JURISPRUDENCE 

The  various  awards,  pensions,  expenses,  etc.,  are  paid  through  the  Post- 
Office  Savings  Bank,  and  there  is  no  such  thing  as  a  judgment  being 
worthless  by  reason  of  insolvency  on  the  part  of  any  individual  em- 
ployer. 

There  also  exists,  by  virtue  of  this  same  law,  insurance  against  sick- 
ness, old  age,  invalidism  and  the  first  thirteen  weeks  of  disability  re- 
sulting from  accident.  The  benefits,  however,  of  this  ' '  Sickness  Insur- 
ance Fund ' '  are  available  only  to  manual  laborers  earning  not  to  exceed 
2,000  marks  yearly. 

In  addition  to  this  Workmen's  Compensation  Law — which  has  had 
the  effect  of  causing  employers  to  take  the  utmost  possible  precautions 
against  accidents— there  exist  the  regulations  of  the  various  unions 
(Berufsgenossensehaften),  which  regulations  are  nailed  upon  the  walls 
of  factories,  mines,  etc.  Infraction  of  these  rules  is  fined  heavily — as 
high  indeed  as  to  1,000  marks. 

Ophthalmo-sanitary  legislation  in  Italy. 

In  Italy  the  legislation  for  the  prevention  of  ophthalmic,  and  other, 
injuries  or  diseases,  is  not  so  thoroughgoing,  quite,  as  it  is  in  Germany. 
Yet,  in  many  respects,  it  is  better  than  similar  legislation  in  the  United 
States. 

The  sanitary  organization  is  very  good  indeed — complete  and  yet 
not  cumbersome.  The  actual  supervision  of  the  public  health  is  dele- 
gated to  Communal  Physicians  (Official  Sanitarians)  while,  over  these, 
are  the  Physicians  of  the  Province,  who,  in  turn,  are  subordinate  to 
the  General  Bureau  of  Health,  which  forms  a  part  of  the  Ministry  of 
the  Interior.  There  exist  also  Provincial  Sanitary  Councils  and  a 
Superior  Council  of  Health. 

Vaccination  is  obligatory  for  all  children  in  the  first  six  months  of 
life.  It  must  be  repeated  whenever  the  sanitary  authority  deems  a 
repetition  necessary.  Admission  to  schools,  factories,  and  various 
classes  of  institutions  is  absolutely  barred,  except  to  persons  who  have 
been  properly  vaccinated.^ 

All  persons  taking  up  their  domicile  in  the  Commune  of  Milan  (and 
the  same  regulation  exists  in  certain  other  communes)  must  submit  at 
once  to  vaccination  unless  indeed  he  has  been  successfully  vaccinated 
within  six  years. 

Among  other  diseases  which  have  to  be  reported  are  the  following, 
important   from   an   ophthalmic   viewpoint:      Trachoma,    diphtheria, 


1  Eegolamento    sulla    vaccinazione    29    marzo    1892    ed    art.    130    della   legge 
sanitoria  1  agosto  1907. 

Ill 


OPHTHALMIC  JURISPRUDENCE 

small-pox,  typhoid  fever,  and  syphilis  when  that  disease  has  been 
communicated  by  "mercenary  intercourse."  There  are  no  formal 
official  cards,  however,  providing  for  a  large  amount  of  detailed  in- 
formation, such  as  are  used  in  Germany.  The  sanitarian  is  simply 
required  to  report  "the  necessary  indications."  Trachoma,  further- 
more, does  not  have  to  be  reported.  It  is  only  fair  to  add,  though, 
that  the  sanitary  authority  can,  when  he  believes  it  to  be  necessary, 
render  the  reporting  of  this  disease  obligatory.  And  that  has  now  and 
then  been  done,  when  a  severe  and  wide-spread  epidemic  of  trachoma 
had  appeared. 

In  the  regulations  concerning  rosiculture,  trachoma  is  regarded 
as  a  reportable  disease.^  The  patient  is  always  isolated.  In  this 
kind  of  cultivation,  I  am  informed,  there  is  a  great  foregathering  of 
workmen  from  very  many  places. 

Midwives  are  not  obliged  by  law  to  report  "any  redness  or  in- 
flammation of  the  eyes,"  but,  as  a  rule,  they  do  actually  report  these 
matters  (in  accordance  with  certain  instructions  issued  to  all  who 
practise  midwifery)  to  physicians,  and  then  the  physicians  are  obliged 
to  make  a  report  of  the  case.  Midwives  are  also  instructed  to  wash 
the  lids  and  inward  parts  of  the  eyes  of  all  newly-born  children  with 
boric  acid  lotion,  and  then,  if,  in  spite  of  these  precautions,  an  in- 
flammation develops,  to  report  the  matter,  as  above  stated,  to  some 
qualified  physician. 

No  printed  cards  relative  to  ophthalmia  neonatorum  are  handed  over 
to  newly-married  couples,  as  is  done  in  France  and  Germany. 

No  certificates  relative  to  the  sight  are  required  for  admission  to  the 
schools.  All  the  communes,  however,  have  their  schools  inspected 
medically  at  least  once  per  month,  thus,  in  the  matter  of  frequency, 
setting  a  splendid  example  to  nearly  all  civilized  lands.  If  contagious 
diseases  are  discovered,  all  the  afflicted  pupils  are  removed  until  such 
time  as  the  reappearance  of  such  pupils  can  be  made  in  the  schools 
with  perfect  safety  to  other  students.  The  matter  is  chiefly  left  to 
local  supervision,  but  the  governmental  sanitary  authority  also  has 
the  power  to  carry  out  the  inspection  himself. 

In  some  of  the  communes  oculists,  as  well  as  general  practitioners, 
are  employed  to  inspect.  In  general,  however,  the  law  pays  little  at- 
tention to  matters  of  sight,  but  lays  most  stress  on  the  subject  of  con- 
tagion. Very  much  is  left,  in  every  jurisdiction,  to  the  discretion  of 
the  teacher  and  the  visiting  physician. 

There  are  no  separate  classes  for  children  with  defective  sight.    Sep- 


1  Art.  13  del  Eeg.  29  marzo  1908. 

112 


OPHTHALMIC  JURISPRUDENCE 

arate  schools  (or  classes)  however,  exist  in  the  larger  communes  for 
children  afflicted  with  trachoma. 

The  excellent  German  Unfallversicherung,  already  adverted  to  in 
this  article  a  number  of  times,  has  stood  as  a  model  for  similar  legis- 
lation in  Italy,  as  in  so  many  other  countries.  This  insurance  law  has 
special  application  in  Italy  to  industries  in  which  machinery  is  used, 
and  in  which  the  number  of  workmen  employed  exceeds  five.  Crews 
of  ships  are  also  insured.  Agricultural  laborers  are  not  insured, 
excepting  those  occupied  in  the  use  of  machinery.  The  law,  I  under- 
stand, "works  w^ell  and  is  severely  applied."  It  has  also  "prevented 
hosts  of  accidents." 

In  addition  to  this  very  beneficent  compulsory  insurance  law,  there 
exist  in  Italy  numerous  regulations  for  the  prevention  of  mischances 
in  various  sorts  of  industries.  A  discussion  of  these  would  lead  us  far 
afield.  Suffice  it  to  say  that,  in  Italy,  almost  every  form  of  injury  by 
machinery,  explosive  substances,  poisons,  etc.,  etc.,  has  been  brought 
within  the  prevision  of  the  law. 

IV. 

MALPRACTICE. 

Surgery  means  snags,  and  he  that  does  much  surgery  will  sooner 
or  later  discover  himself  entangled  in  snags  of  a  legal  kind.  To  this 
rule  the  surgery  of  the  eye  is  by  no  means  an  exception ;  it  is,  in  fact, 
rather  an  exaggerated  instance  of  the  working  of  that  rule.  The 
largest  proportion  of  malpractice  suits,  to  be  sure,  grows  out  of  frac- 
tures and  dislocations,^  while  obstetrics  as  a  fruitful  field  for  damage 
suits  comes  clearly  next  in  order,  but  then,  as  class  three,  and  close 
to  the  two  preceding  categories,  comes  the  surgery  of  the  eye. 

The  reasons  for  this  high  degree  of  liability  in  the  case  of  ophthal- 
mic surgery  are  exceedingly  numerous.  Suffice  it  to  state  three : 
(a)  The  delicacy  and  great  importance  of  the  organ  on  which  such 
surgery  is  done,  (b)  The  rather  large  amount  of  surgery  which  is 
necessary  in  connection  with  the  treatment  of  diseases  of  the  eye. 
(c)  The  special  responsibility  imposed  by  the  law  (at  least  in  the 
United  States  and  England)  upon  any  one  who  professes  to  be  a 
specialist. 


1  This,  at  least,  is  true  in  the  United  States.  In  Germany,  I  understand, 
malpractice  suits  arise  most  often  from  obstetrical  procedures.  See,  for  example, 
Gottschalk,  " GericlitUche  Medicin,"  p.  271:  "Von  den  Anklagen  wegen  Kun- 
stf ehler  nehmen  aber  an  Zahl  die  erste  Stelle  ein  diejenigen  gegen  Geburtshelf er. ' ' 
The  statement  accords  with  the  generally  received  opinion  that  deformity  of  the 
female  pelvis  is  commoner  by  far  in  Germany  than  in  the  United  States. 

113 


OPHTHALMIC  JURISPRUDENCE 

In  the  discussion  of  the  subject  of  ophthalmo-surgical  malpractice, 
precedence  will  be  given — as  was  done  in  the  case  of  the  ophthalmic 
expert  witness — to 

A. — Legal  cotisideraUcms  regarding  malpractice. 

Legal  considerations  regarding  malpractice  in  the  United  States. 
In  the  United  States — as  indeed  in  almost,  but  not  quite,  every 
civilized  country — this  one  basic  proposition  underlies  the  entire  law 
of  malpractice,  namely,  that  a  physician  is  never  legally  required  to 
respond  to  a  call  for  professional  assistance,  if  (a)  he  is  not  a  govern- 
mental officer  and  thereby  under  official  obligations,  or  if  (b)  he  has 
not  already  established  relations  with  the  case.  This  is  precisely  to 
the  contrary  of  the  popular  impression,  but  is  nevertheless  the  law. 
Says  Wharton :  ^  "No  question  can  exist  as  to  the  legal  right  of  a 
physician,  unless  he  be  an  officer  of  the  government  charged  with  spe- 
cific duties,  which  he  thereby  violates,  to  decline  to  take  charge  of  a 
particular  case."  A  recent  Indiana  case^  well  illustrates  precisely 
how  free  a  physician  is  to  refuse  to  take  charge  of  a  case.  Here 
the  phj^sician,  who  had  been  the  patient's  family  practitioner,  refused, 
admittedly  without  reason,  to  respond  to  the  call  of  a  man  who  was 
intensely  sick,  although  he  (the  doctor)  had  confessedly  been  ten- 
dered the  fees  for  his  services  in  advance,  and  although  he  knew  that 
no  other  physician  could  possibly  be  procured  in  time  to  be  of  service 
to  the  patient,  and  that,  if  he  (the  physician  in  question)  did  not  re- 
spond, the  patient  would  probably  die  in  consequence.  The  sick  man 
did  actually  die,  and,  as  alleged,  in  consequence  of  the  physician's  non- 
response  to  his  call.  There  could  hardly  have  been  a  stronger  case 
against  the  physician,  were  the  law  other  than  it  really  is.  But  said 
the  court:  "The  act  is  a  preventative,  not  a  compulsive,  measure.  In 
obtaining  the  state's  license  (permission)  to  practice  medicine,  the 
state  does  not  require,  and  the  licensee  does  not  engage,  that  he  will 
practice  at  all  or  on  other  terms  than  he  may  choose  to  accept.  Coun- 
sel's  analogies,  drawn  from  the  obligations  to  the  public  on  the  part 
of  innkeepers,  common  carriers,  and  the  like,  are  beside  the  mark." 

"When,  however,  a  physician  once  takes  charge  of  a  case,  certain 
responsibilities  attach  to  his  work  immediately  and  by  implication. 
No  express  agreement  to  be  responsible  for  this  or  that  is  at  all  neces- 
sary in  order  to  render  him  responsible.'  On  the  other  hand,  with  one 
exception,  he  cannot  evade  his  professional  liabilities  by  any  sort  of 


1  On  Negligence,  Sec.  731. 

2  Hurley  Admr.  vs.  Eddingfield,  156  Ind.,  416. 

114 


OPHTHALMIC  JURISPRUDENCE 

contract  whatever,  however  express  and  however  explicit.  Contracts 
made  in  advance  of  treatment  or  operation,  with  a  patient,  or  with  a 
patient's  parent  or  guardian,  that  the  physician  is  not  to  be  sued  for 
malpractice,  are  universally  held  to  be  "opposed  to  public  policy"  and 
therefore  void.^  The  one  exception  is  where  a  physician  declares  to 
the  patient  his  inability  to  treat  the  case  properly  (as,  for  instance, 
in  many  instances,  where  a  specialist  is  recommended)  and  yet  the 
patient  insists  that  the  physician  proceed  to  do  the  best  he  can.  In 
such  circumstances  the  patient  is  estopped  from  complaining  after- 
ward that  the  case  has  not  been  treated  properly — provided,  of  course, 
the  physician  has  really  done  the  best  he  could. 

On  the  other  hand,  although,  as  we  have  seen,  the  physician  can- 
not, generally  speaking,  diminish,  either  in  number  or  extent,  the  lia- 
bilities which  the  law  imposes  on  him,  he  can  very  easily  (and  often 
to  his  sorrow)  very  greatly  enlarge  them.  And  he  can  also  lessen  his 
rights,  as  well  as  increase  his  liabilities.  A  very  common  instance  of 
lessening  his  rights  results  from  the  ' '  no  cure  no  pay ' '  agreement.  In 
this  instance,  if  the  patient  is  not  cured  he  does  not  have  to  pay ;  the 
physician  has  lost  his  right  of  action  against  him  for  the  fees.  An 
instance  where  the  physician  voluntarily  enlarges  his  liabilities  results 
from  the  "guaranty  to  cure."  This  highly  important  arrangement  is 
a  very  different  affair  from  the  ' '  no  cure  no  pay ' '  agreement,  though, 
as  a  rule,  physicians  confound  the  two  together.  When  a  physician 
guarantees  to  cure,  he  must  cure,  or  "pay  the  difference."  That  is 
a  very  different  consequence,  as  will  at  once  be  noted,  from  merely 
losing  one 's  fees.  To  illustrate :  If  a  physician  operates  for  cataract, 
and  guarantees  to  restore  to  the  operated  eye  its  vision,  then,  if  the 
sight  be  not  restored,  the  measure  of  the  damages  is  precisely  what 
the  sight  of  that  eye  would  have  been  worth.  A  jury  may  assess  this 
value  at  thousands  of  dollars. - 

Now,  what  are  these  responsibilities  that  attach  to  a  physician  imme- 
diately upon  his  acceptance  of  a  case,  and  by  implication  irrespective 
of  any  express  contract  ?    They  are : 

1.  Properly  to  continue  his  attendance. 

2.  To  possess  a  reasonable  degree  of  learning  and  skill. 


1  Nor  does  treating  a  case  gratuitously  at  all  dimioish  the  physician 's  liability 
for  malpractice. 

2  It  is  a  general  rule  of  contract  that,  when  a  party  has,  for  a  consideration, 
agreed  to  deliver  a  certain  article — whether  iron  rails  or  eye-sight — and  has 
failed  to  deliver  it,  he  must  pay  to  the  injured  party  the  value  of  the  article  in  its 
stead.  Eeturning  the  compensation  may,  in  the  case  of  some  contracts,  be  pre- 
cisely equivalent  to  payment  of  the  value  of  the  article,  but  (as  in  the  case  of 
failure  to  restore  to  a  cataractous  eye  its  sight)  it  may  fall  short  of  so  doing 
by  several  thousand  dollars. 

115 


OPHTHALMIC  JURISPRUDENCE 

3.  To  use  that  reasonable  degree  of  learning  and  skill. 

4.  In  cases  of  doubt,  to  use  his  best  judgment. 

Of  each  of  these  duties,  we  will  treat  in  the  order  indicated,  and, 
later,  of  certain  miscellaneous  affairs  of  importance  in  connection 
with  malpractice. 

1.  As  to  the  physician's  duty  properly  to  continue  attendance,  we 
may  say,  briefly,  that,  in  no  instance,  may  he  discontinue  his  treatment, 
unless  (a)  the  patient  discharges  him,  (b)  the  patient  consents  to  the 
discontinuance,  (c)  the  physician  gives  timely  notice  so  that  the 
patient  may  employ  another  doctor  in  due  season,  (d)  when  the 
patient  is  no  longer  in  need  of  the  physician's  services. 

2.  The  physician's  second  duty,  when  he  has  once  taken  charge  of  a 
case,  is  to  possess  a  reasonable  degree  of  learning  and  skill.  Of  course 
a  physician  is  not  responsible  merely  for  failure  to  cure.  He  is  re- 
sponsible only  for  the  failure  to  possess  (or  to  use)  a  reasonable  degree 
of  learning  and  skill.  The  question  unavoidably  arises,  What  consti- 
tutes a  reasonable  degree  of  skill  and  learning?  In  the  United  States, 
there  exist  on  this  important  head  three  very  different  rules : 

a.  The  physician  is  bound  to  exercise  that  degree  of  care  and  skill 
which  prevails  in  the  particular  locality  in  which  the  given  case  arises.^ 
This  rule  is  not  much  followed. 

b.  The  physician  is  bound  to  exercise  that  degree  of  care  and  skill 
possessed  by  physicians  in  such  localities  generally.^  In  this  case,  the 
court  said,  speaking  with  regard  to  the  first  of  the  rules  on  this  sub- 
ject, namely,  the  ' '  particular  locality ' '  rule :  ' '  There  might  be  but  few 
practising  in  the  particular  locality,  all  of  whom  might  be  quacks,  ig- 
norant pretenders  to  knowledge  not  possessed  by  them,  and  it  would 
not  do  to  say,  that,  because  one  possessed  and  exercised  as  much  skill 
as  the  others,  he  could  not  be  chargeable  with  the  want  of  reasonable 
skill."  According  to  this  second,  or  "similar  localities"  rule,  the 
physician  practising  in  a  large  city  is  bound  to  possess  a  higher  degree 
of  skill  and  knowledge  than  physicians  who  practise  in  the  smaller 
cities  and  those  in  the  smaller  cities  than  those  who  practise  in  the 
villages  and  the  country.  The  second  rule  is  the  prevalent  rule,  by 
far. 

A  most  excellent,  as  well  as  recent,  case  upon  this  second,  or  general, 
rule,  is  that  of  Shelton  v.  Hacelip  (51  So.  Rep.  937,  May  7,  1910,  Ala.). 
In  this  case,  a  child,  11  months  of  age,  Velma  Hacelip,  "had  been 
affected  with  chicken-pox  and  nausea,  and  the  right  eye  (the  one 
destroyed)  was  inflamed,  ulcerated  in  the  external  corner,  had  scabs 


1  Hathorn  v.  Richmond,  48  Vt.  557. 

2  Gramm  v.  Boener,  56  Ind.  497.   McDonald  v.  Harris,  131  Ala.  359. 

116 


OPHTHALMIC  JURISPRUDENCE 

ou  it,  and  was  infected  with  pus  and  'septic  poison.'  "  The  further 
facts  (all  undisputed)  were:  "That  defendant  was  called  profes- 
sionally to  see  her,  mainly,  it  appears,  for  the  eruption  and  nausea. 
That  he  examined  the  right  eye,  and  stated  that  he  would  give  a 
prescription  for  its  treatment,  and  at  the  same  time  instructed  the 
parents  to  keep  the  organ  clean  with  the  frequent  application  of  warm 
boiled  water.  That  what  was  received  as  this  prescription  was  used 
by  dropping  three  or  four  drops,  from  a  teaspoon,  into  the  eye  after 
lifting  the  eyelid.  That  this  application  was  made  in  the  afternoon 
about  two  o'clock.  That  the  child  at  once  gave  evidence  of  being  in 
great  pain  in  that  eye,  and,  ^^ath  its  hands,  rubbed  off  the  scabs,  and 
introduced  the  poisoning  pus  into  the  eye.  That  the  sight  of  the  eye 
was  destroyed  when  examined  on  the  succeeding  morning,  the  de- 
struction being  accomplished  by  the  thickening  of  the  tissues  over  the 
sight  of  the  eye. ' ' 

The  court  first  quoted  the  rule  as  given  in  McDonald  v.  Harris  (131 
Ala.  359)  as  follows:  "The  reasonable  and  ordinary  care,  skill,  and 
diligence  which  the  law  requires  of  physicians  and  surgeons  is  such 
as  physicians  and  surgeons  in  the  same  general  neighborhood,  in 
the  same  general  line  of  practice,  ordinarily  have  and  exercise  in  a 
like  case."  The  opinion  of  the  court  was  then  as  follows:  "The 
evident  theory  of  the  plaintiff  (appellee)  was  on  the  trial  that  the 
liquid  introduced  into  the  eye  contained  carbolic  acid,  and  that  the 
destruction  of  the  sight  resulted  from  that.  It  is  obvious  that,  if  the 
loss  of  sight  was  due  to  disease,  the  defendant  did  not  breach  his  duty, 
unless  in  the  treatment  thereof  he  failed  to  measure  up  to  the  standard 
stated  before;  and  it  is  equallj^  as  obvious  that  the  plaintiff's  theory 
excludes  any  other  means  or  omission  leading  to  that  breach  of  duty 
in  the  premises  except  that  rested  on  the  use  of  carbolic  acid  (a  matter 
disputed  in  the  proof)  in  the  prescription  written  by  the  defendant 
in  the  treatment  of  the  eye.  Dr.  Hughes  and  defendant  both  testified 
that  the  prescription  written  by  defendant  was  prepared  by  Hughes, 
and  not  by  defendant,  and  that  in  it  there  was  no  ingredient  of 
carbolic  acid.  Dr.  ^Murray  testified  that  the  eye  nor  lid  nor  face 
gave  any  evidence  of  having  been  burned  with  carbolic  acid,  and  that 
in  his  opinion  the  loss  of  sight  was  due  to  the  disease.  There  are  some 
tendencies  in  the  evidence  to  the  effect  that  the  preparation  contained 
carbolic  acid,  the  chief  of  which  were  afforded  by  the  testimony  of 
two  witnesses  that  the  contents  of  the  bottle  bore  an  odor  of  carbolic 
acid,  and  that  the  sediment  in  the  bottom  of  the  bottle  was  similar  to 
that  made  by  an  excess  over  a  solution  of  carbolic  acid. 

' '  The  burden  of  proof  in  cases  of  this  character  is  on  the  plaintiff  to 

117 


OPHTHALMIC  JURISPRUDENCE 

show  that  the  defendant's  care,  skill,  or  diligence  in  the  given  case 
was  not  that  required,  as  stated,  of  physicians  and  surgeons;  and  it 
should  be  added  that  there  is  no  presumption  of  negligence  or  want 
of  skill  arising  from  the  failure  to  cure.  (30  Cyc.  p.  1584,  and 
authorities  in  notes.)  It  is  evident  from  this  record  that  the  con- 
trolling issue  was  whether  the  preparation  applied  to  the  eye  was  that 
prescribed  by  the  defendant.  As  indicated,  there  was  some  evidence 
tending  to  show  that  the  preparation  was  that  prescribed  by  the  de- 
fendant, and  that  it  contained  carbolic  acid.  It  consisted  of  the 
testimony  of  Mrs.  Daniel  that  the  defendant  brought  the  bottle  to 
the  house  where  the  child  was,  and  that  out  of  this  bottle  the  liquid 
was  put  into  the  eye.  It  must  be  conceded  that  there  was  a  conflict 
in  respect  of  the  issue  stated.  In  the  light  of  all  of  the  evidence, 
however,  the  opinion  is  entertained  that  the  weight  of  the  evidence 
and  the  probabilities  of  the  truth  of  that  tending  to  fix  liability  upon 
the  defendant  are  so  strongly  against  the  verdict  as  to  carry  conviction 
that  it  is  wrong  and  unjust. 

''In  the  first  place,  the  long  period  of  time  elapsing  between  the 
injury  and  the  institution  of  the  action,  in  connection  with  the  un- 
disputed fact  that  defendant  was  subsequently  often  called  profes- 
sionally to  treat  members  of  ]\Irs.  Daniel's  family,  are  circumstances 
impossible  to  be  ignored  in  determining  the  weight  to  be  given  Mrs. 
Daniel's,  the  next  friend's,  testimony.  In  the  second  place,  Dr.  Sulli- 
van's testimony  may  be  taken  at  the  limit  of  its  probative  value,  and 
yet,  when  boiled  down,  it  amounts  to  nothing  more  than  that  the 
injury  "might" — a  term,  as  employed,  no  stronger  than  possibly — 
have  been  produced  by  carbolic  acid,  or  "might"  (i.  e.,  possibly)  have 
resulted  from  a  virulent  form  of  conjunctivitis,  a  disease  of  the  mem- 
brane of  the  eyeball.  There  was  for  the  plaintiff  no  evidence  that  the 
eyeball  or  its  membranes  were  burned  by  a  caustic;  carbolic  acid 
being  of  that  class  of  chemicals.  On  the  contrary,  the  proof  is  con- 
clusive that  carbolic  acid,  when  applied  to  the  human  anatomy — its 
component  membranes — deadens,  and  the  inevitable  effect  is  to  produce 
a  sloughing  of  the  cauterized  part.  There  is  a  total  absence  of  proof 
that  any  sloughing  occurred.  As  we  view  the  evidence  here,  it  is  im- 
possible to  cauterize  a  membrane  with  carbolic  acid,  and  affect  only 
to  change  its  color.  It  is  incredible  on  this  evidence  that  the  iris  could 
be  altered  in  color  from  brown  to  white  by  the  application  of  carbolic 
acid,  and  at  the  same  time  avoid  sloughing  of  the  cauterized  mem- 
brane. Directly  opposed  to  the  plaintiff's  theory  of  fact  there  is  the 
testimony  of  Hughes  and  defendant  and  that  of  Dr.  Murray,  and  the 
original  prescription  defendant  contends  was  supplied  by  him.     The 

118 


OPHTHALMIC  JURISPRUDENCE 

two  first  mentioned  say  that  there  was  no  carbolic  acid  in  the  prepara- 
tion, and  that  the  prescription  was  filled  by  Hughes,  and  not  by  the 
defendant.  The  original  prescription  is  before  us.  Carbolic  acid  is 
not  one  of  its  named  elements.  Dr.  Murray  saw  the  eye  the  next  day, 
and  he  is  positive  that  there  was  no  evidence  of  cauterization  about 
the  eye  or  face.  So  far  as  appears,  he  is  Avithout  interest  in  the 
premises.  He  was  called  by  Mrs.  Daniel.  Support  for  the  plaintiff's 
insistence  must  come  from  the  odor  and  the  sediment.  Two  witnesses 
say  there  was  an  odor  of  carbolic  acid,  and  one  that  there  was  a  cloudy 
sediment  in  the  bottle.  The  inevitable  effect  of  carbolic  acid  on  mem- 
branes and  the  positive  statement  of  Dr.  Murray  that  there  was  no 
cauterization,  and  that  there  was  no  sloughing  and  the  testimony  of 
Hughes  and  defendant,  all  in  connection  with  the  long  lapse  of  time 
between  the  injury  and  the  commencement  of  the  action  and  the 
continuance  of  defendant  in  the  professional  service  of  the  house- 
hold, compel  the  conclusion  that  carbolic  acid  did  not  destroy  the 
child's  sight. 

"The  court  should  have  granted  the  new  trial.  Its  refusal  was 
error,  and  on  that  account  the  judgment  must  be  reversed." 

c.  Some  of  the  lower  courts  have  attempted  to  establish  a  yet  higher 
standard  of  professional  knowledge  and  skill,  a  standard  which  has 
been  expressed  in  the  following  language:  "Such  skill  and  diligence 
as  are  ordinarily  exercised  by  thoroughly  educated  physicians  and 
surgeons."  No  court  of  last  resort,  however,  in  the  United  States, 
has  yet  sustained  this  rule.^  However,  the  tendency  is,  with  the  con- 
tinued improvement  in  medical  education,  for  the  courts  to  approxi- 
mate more  and  more  closely  to  this  very  high  standard  of  medical 
and  surgical  requirements. 

Now,  all  these  three  rules  (the  second,  as  before  stated,  being  the 
prevailing  one)  apply  to  general  practitioners  only.  A  question  of 
especial  interest  of  course  arises  here :  What  is  the  standard  of 
requirement  in  the  case  of  specialists,  ophthalmic  surgeons,  for  in- 
stance ? 

It  is  undoubtedly  a  fact  that  a  specialist  (and,  in  this  connection,  a 
specialist  is  any  one  who  holds  himself  out,  in  effect,  to  be  such)  is 
bound  to  a  higher  degree  of  skill  than  is  a  general  practitioner.  The 
rule  is  that  a  person  assuming  to  be  a  specialist  must  really  possess 
and  actually  use  the  ordinary  learning  and  skill  possessed  and  used 


1  Unless  we  except  the  Supreme  Court  of  Pennsylvania  in  McCandless  v.  McWha 
(22  Pa.  St.  26).  In  this  case  Woodward,  J.,  defined  "reasonable  skill  and 
diligence"  to  be  "such  as  thoroughly  educated  surgeons  ordinarily  employ." 
It  is  a  question,  however,  whether  this  definition  is  not  merely  obiter.  Further, 
the  case  is  by  no  means  recent;  its  date  is  1853. 

119 


OPHTHALMIC  JURISPRUDENCE 

by  others  who  practise  the  same  specialty  or  specialties  in  similar 
localities.  Even  in  the  case  of  a  specialist,  however,  practising  in  a 
city  of  the  very  largest  class,  the  degree  of  skill  required  is  by  no 
means  such  as  would  enable  him  to  effect  a  cure  in  every  case  that 
comes  before  him.  There  is,  in  other  words,  on  the  part  of  the  spe- 
cialist no  implied  warranty  to  cure  any  more  than  there  is  in  the 
case  of  the  general  practitioner.  A  warranty  to  cure  can  arise  only 
from  an  express  contract — a  contract  which,  however,  as  everybody 
knows,  even  with  all  its  possible  disastrous  legal  consequences,  certain 
physicians  are  nevertheless  unwise  enough  to  enter  into.  The  law  does 
not  attach  legal  consequences,  either  to  general  practitioner  or  to 
specialist,  merely  for  failure  to  cure.  It  is  to  malpractice — the  failure 
either  to  possess,  or  to  use,  the  proper  degree  of  knowledge  and  skill 
(which  varies  according  to  locality,  specialism,  etc.)  that  the  law 
attaches  such  consequences.  The  leg  or  the  arm,  or  the  ear  or  the  eye, 
must  have  been  improperly  treated  or  in  some  way  neglected,  in  order 
to  constitute  malpractice.^ 

The  effect  of  this  principle  is  very  far  reaching.  In  Stern  v. 
Lanng,2  for  instance,  Dr.  Lanng,  an  oculist,  had  removed  a  chalazion 
from  the  left  lower  eyelid.  He  had  made  on  the  conjunctival  surface 
of  the  lid  a  crucial  incision  down  into  the  cyst,  and,  after  removing 
the  gelatinous  contents  of  the  growth,  had  used  a  tiny  scoop  for  the 
removal  of  the  sac.  Finally,  he  had  cauterized  the  cavity  by  means 
of  a  stick  of  nitrate  of  silver  ' '  about  an  inch  in  length ' '  and  ' '  about  the 
shape  of  a  lead  pencil."  The  eye  itself  became  much  inflamed,  and 
solutions  of  atropin  and  boric  acid  were  employed  to  combat  the  in- 
flammation and  for  disinfecting.  The  lid  became  adherent  to  the 
cornea,  and  the  cornea  became  opaque.  In  consequence  of  the  corneal 
opacity  the  eye  was  entirely  blind.  At  the  trial  three  expert  oculists 
pronounced  the  treatment  proper.  Said  the  judge  in  the  higher  court : 
"The  inflammation  of  the  cornea,  and  consequent  opaqueness,  is  as- 
cribed by  the  appellant  to  the  cauterization  of  which  he  complains, 
but  this  is  not  sustained  by  the  testimon3^  There  are,  we  are  in- 
formed, a  number  of  causes  for  it,  and  that  it  is  impossible  to  look  at 
the  eye  and  tell  whether  it  has  been  burnt  or  not  .  .  .  The  result  of 
the  treatment  is  not  all  that  is  necessary  to  recover.  It  must  be  made 
evident  that  there  was  negligence  or  want  of  skill.  There  was  in- 
tense pain  felt  by  plaintiff  after  the  incision.    It  does  not  necessarily 


1  And,  need  we  add,  damage  of  some  sort  must  actually  have  followed  from 
such  unskilfulness  or  negligence,  in  order  to  entitle  the  patient  to  recover.  Other- 
wise, it  is  injuria  absque  damno,  wrong  without  damage,  and  this  is  not  actionable. 

2  106  La.  736. 

120 


0PHTHAL3VIIC  JURISPRUDENCE 

follow,  as  we  infer,  that  it  was  owing  to  the  negligence  or  unskillful- 
ness  of  the  physician."  The  judgment  which  the  defendant  had  ob- 
tained below  was  therefore  affirmed. 

Another  leading  eye  case  on  this  point  is  that  of  Pettigrew  v.  Lewis 
et  al.^  The  plaintiff,  a  school  teacher,  alleged  that  an  operation  had 
been  performed  on  her  left  eye  by  the  defendants  (partners)  for 
strabismus,  and  that  the  operation  had  been  performed  so  negligently 
and  unskillfully  "that  her  eye  became  sore  and  weak,  rendering  her 
unable  to  complete  her  education  or  to  perform  ordinary  household 
work. ' '  She  further  alleged  that  she  ' '  suffered  and  still  suffers  great 
physical  pain  in  consequence  of  the  unskillful  operation  and  treat- 
ment, which  has  continued  to  increase  since  the  time  of  the  operation. ' ' 
The  lower  court,  however,  sustained  a  demurrer  to  the  evidence,  ' '  hold- 
ing that  it  was  insufficient  to  establish  a  liability  against  the  defend- 
ants .  .  .  and  gave  judgment  accordingly."  The  plaintiff  took 
the  case  to  the  Supreme  Court,  there  urging  "that  the  testimony  of- 
fered b}'  her  was  sufficient  to  take  the  cause  to  the  jury."  But  said 
Justice  Johnston:  "We  agree  with  the  district  court  that  it  [the  evi- 
dence] did  not  show  the  operation  to  have  been  unskillfully  and  negli- 
gently performed,  nor  yet  that  the  present  condition  of  her  eyes  was 
the  result  of  the  operation  that  was  performed.  No  proof  was  offered 
of  the  instruments  used  or  the  manner  in  which  the  operation  was  per- 
formed. No  medical  or  scientific  evidence  was  offered  showing  the 
cause  of  the  present  condition  of  the  plaintiff's  eyes,  nor  that  the 
defendants  were  negligent  or  careless  in  the  performance  of  the  opera- 
tion. In  fact  no  witnesses  having  special  skill  or  knowledge  with 
reference  to  the  treatment  of  the  eyes  were  introduced  in  behalf  of 
the  plaintiff.  The  burden  rested  on  the  plaintiff  to  show  a  want  of 
due  care,  skill,  and  diligence  in  the  operation,  and  that  the  defective 
condition  now  existing  is  the  result  of  such  want  of  care,  skill,  and 
diligence." 

Now  the  degree  of  learning  and  skill  which  the  specialist  does  really 
need  to  possess  and  actually  to  employ  in  order  to  escape  the  legal  con- 
sequences which  the  law  imposes  upon  a  specialist  guilty  of  malpractice, 
is,  as  already  stated,  such  a  degree  as  is  ordinarily  possessed  and  ac- 
tually used  by  specialists  (not  general  practitioners)  practising  the 
same  specialty,  or  specialties,  in  similar  localities. 

A  couple  of  illustrations  may  possibly  here  be  useful.  In  Feeny  v. 
Spalding^  the  defendant  was  a  distinguished  oculist  who  practised  in 
Portland,  IMe.    While  on  a  trip  to  Machias  he  stopped  over  for  a  short 


1  48  Kan.  78. 

2  89  Me.  111.    See  also  Rann  v.  Twitehell,  Ft,  1909;  71  At.  1045;  20  L.  R.  A. 
N.  S.  1030. 

121 


OPHTHALMIC  JURISPRUDENCE 

time  at  Cherryfield.  Here  a  girl,  seven  years  of  age,  cross-eyed  since 
she  was  a  year  and  a  half  old,  was  brought  to  him  for  examination  and 
treatment.  After  a  conference  with  the  parents,  defendant  performed 
a  surgical  operation  on  one  of  the  plaintiff's  eyes.  The  plaintiff 
alleged  that,  prior  to  the  operation,  the  sight  of  the  eye  on  which  the 
operation  had  been  preformed,  was  at  least  fairly  good,  but  that,  after 
the  operation,  it  was  entirely  wanting.  She  further  alleged  that  this 
result  was  produced  by  defendant's  ignorance,  want  of  skill,  and 
carelessness  in  the  performance  of  the  operation.  The  plaintiff,  in  the 
trial  court,  had  received  a  verdict.  Said  the  court:  "It  was  encum- 
bent on  her  [the  plaintiff]  to  prove  that  the  injury  complained  of 
was  caused  either  by  the  defendant's  want  of  that  degree  of  skill  and 
knowledge  which  is  ordinarily  possessed  by  physicians  who  devote  spe- 
cial attention  and  study  to  the  treatment  of  the  eye,  or  by  his  failure 
to  exercise  his  best  judgment  in  the  application  of  his  skill  to  the 
particular  case,  or  by  his  failure  to  use  ordinary  care  in  the  perform- 
ance of  the  operation,  and  in  giving  such  instructions  as  should  have 
been  given  by  a  surgeon  who  was  only  to  perform  the  operation,  and 
who  was  temporarily  in  the  locality  where  the  patient  lived  .  .  . 
At  the  trial,  the  plaintiff  relied  almost  entirely  upon  the  result  which 
it  is  claimed  followed  the  operation  .  .  .  while  the  expert  testi- 
mony on  the  part  of  the  defense  was  to  the  effect  that  an  examination 
of  the  eye  showed  conclusively  that  the  defective  vision  had  existed 
from  birth  and  that  it  was  as  good  at  the  time  of  the  trial  as  it  ever  had 
been  .  .  .  Even  if  there  was  sufficient  evidence  to  authorize  the 
jury  to  find  for  the  plaintiff  upon  this  question,  such  a  finding  was 
not  sufficient  to  warrant  a  verdict  for  the  plaintiff,  when  there  was  no 
evidence  of  any  want  of  the  requisite  skill,  knowledge,  or  care  upon 
the  part  of  the  defendant. ' ' 

Still  another  case  is  that  of  Baker  v.  Hancock.^  Here  the  defendant 
was  a  specialist  in  the  treatment  of  cancer.  Plaintiff  alleged  that  de- 
fendant had  placed  upon  his  nose  a  substance  by  "which  the  end  of 
his  nose  was  eaten  off."  The  verdict  below  was  for  the  defendant, 
but  the  higher  court  reversed  the  judgment  and  remanded  the  case 
for  a  new  trial,  saying:  "Scientific  investigation  and  research  have 
been  extended  and  prosecuted  so  persistently  and  learnedly  that  the 
person  affected  by  many  forms  of  disease  is  of  necessity  compelled  to 
seek  the  aid  of  a  specialist,  in  order  to  secure  the  results  thereof.  The 
local  doctor,  in  many  instances,  himself  suggests  and  selects  the  spe- 
cialist whose  learning  and  industry  have  given  him  a  knowledge  in 


1  29  Ind.  App.  456. 

122 


OPHTHALMIC  JURISPRUDENCE 

the  particular  liue  which  the  general  practitioner,  in  rural  communities 
especially,  has  neither  time  nor  opportunity  to  acquire,  (Small  v. 
Howard,  128  Mass.  131.)  Being  employed  because  of  his  peculiar 
learning  and  skill  in  the  specialty  practised  by  him,  it  follows  that  his 
duty  to  the  patient  cannot  be  measured  by  the  average  skill  of  general 
practitioners.  If  he  possessed  no  greater  skill  in  the  line  of  his  spe- 
cialty than  the  average  physician,  there  would  be  no  reason  for  his 
employment;  possessing  such  additional  skill,  it  becomes  his  duty  to 
give  his  patient  the  benefit  of  it.  The  appellee,  if  he  held  himself  out 
as  a  specialist  in  the  treatment  of  cancer,  was  bound  to  bring  to  the 
discharge  of  his  duty  to  patients  employing  liiui  as  such  specialist 
that  degree  of  skill  and  knowledge  which  is  ordinarily  possessed  by 
physicians  who  devote  special  attention  and  study  to  the  disease,  its 
diagnosis  and  treatment,  having  regard  to  the  present  state  of  scientific 
knowledge.  This  is  the  degree  of  skill  which,  by  holding  himself  out 
as  a  specialist,  he  represented  himself  to  have ;  and  it  does  not  lie  with 
him  to  assert,  after  securing  employment  and  compensation  on  that 
basis,  that  his  representation  was  not  true." 

In  any  case,  however,  whether  the  defendant  is  city  or  country 
general  practitioner  or  city  or  country  specialist,  the  degree  of  skill 
and  learning  required  has  reference  always  to  "the  present  state  of 
medical  and  surgical  knowledge."  This  legal  proposition  is  illustrated 
clearly  in  Peck  v.  Hutchinson.^  The  plaintiff,  as  alleged,  had  had 
"infection  of  conjunctivitis  and  blennorrhea,"  together  with  a  perfor- 
ating ulcer  of  the  cornea  and  prolapse  of  the  iris.  Defendant  had 
operated  on  the  eye,  and,  as  alleged,  had  used  "too  large  a  knife," 
etc.,  etc.  A  matter  which  bulked  very  largely  at  the  trial  was  that,  in 
the  course  of  the  operation,  the  plaintiff  had  suddenly  jerked  her  head 
about,  causing  the  production  of  a  false  incision,  deep  and  long,  di- 
rectly across  the  cornea.  To  this  unfortunate  movement  the  defendant 
attributed  the  non-success  of  his  operation.  The  plaintiff,  in  her  turn, 
contended  that  the  movement  w^as  unavoidable  by  reason  of  the  fact 
that  the  work  had  been  done  under  local,  instead  of  general,  anesthesia. 
The  plaintiff's  counsel  was  allowed  to  read  from  Wells's  '^Treatise  on 
the  Eye"  the  remarks  by  that  author  on  the  subject  of  iridectomy. 
In  the  course  of  these  remarks  the  author  states  that,  for  iridectomy, 
chloroform  should  always  be  administered.     He  does  not  even  men- 


1  88  Iowa  320,  55  N.  W.  Eep.  511  ("N.  W.  Eep."  stands  for  "Northwestern 
Beporter,"  a  convenient  periodical,  published  by  a  private  company,  but  contain- 
ing in  each  issue  the  latest  decisions  of  the  courts  of  last  resort  in  various  north- 
western states.  It  appears  sooner,  and  is  often  more  accessible  later,  than  the 
ofiicial  state  reports.  There  is  also  a  ' '  Southwestern  Beporter, "  a  * '  South- 
eastern Beporter,"  etc.). 

123 


OPHTHALMIC  JURISPRUDENCE 

tion  local  anesthesia.  In  accordance  with  the  views  of  this  book,  the 
counsel  for  the  plaintiff  declared  that  the  defendant  had  neglected  his 
duty,  inasmuch  as  he  had  operated  with  local  anesthesia  only.  But 
said  the  higher  court :  ' '  The  book  was  published  in  1880  .  .  .  the 
operation  was  performed  in  1886,  and  it  is  claimed  that,  after  1880, 
and  prior  to  1886,  great  changes  had  occurred  in  optical  surgery; 
that  during  that  time,  cocain,  a  local  anesthetic,  was  discovered,  and 
came  into  use,  thus  superseding  the  use  of  general  anesthetics  in  such 
cases.  This  may  be  conceded  .  .  .  that  fact  was  fully  shown  to 
the  jury.  '  Physicians  and  surgeons  are  required  to  use  ordinary  skill 
and  diligence  .  .  .  having  regard  to  the  improvements  and  ad- 
vanced state  of  the  profession  at  the  time  of  the  treatment.'  "  The 
judgment,  which,  in  the  lower  court,  had  been  for  the  plaintiff,  was, 
therefore,  by  the  higher  court  reversed. 

Here  is  a  still  further  point  in  connection  with  the  question  of 
what  constitutes  a  reasonable  degree  of  learning  and  skill.  The  matter 
is  always  to  be  tested  by  the  doctrines  of  one 's  own  school  of  practice. 
This  legal  proposition  is  absolutely  indisputable,  having  been  decided 
in  a  very  large  number  of  cases,  with,  so  far  as  I  know,  not  a  single 
dissenting  case.^  The  principle  is,  in  fact,  not  merely  good  law,  but 
also  good  sense.  So  long  as  the  law  gives  recognition  to  various 
so-called  "schools,"  it  must,  as  a  natural  consequence,  allow  the  treat- 
ment of  any  given  physician  to  be  tested  by  the  doctrines  of  the  school 
he  professes  to  practice.  To  hold  a  regular  practitioner  culpable  for 
ignoring  the  principles  of,  say,  homeopathy  or  of  eclecticism,  or  an 
osteopathic  physician  for  not  proceeding  according  to  the  principles 
of  regular  medicine  or  of  homeopathy,  would  be,  in  effect,  not  mcrelyi 
to  violate  the  compact  made  with  the  State  when  the  physician  was 
granted  a  license  to  practise,  but  also  to  break  the  contract  made  by 
implication  between  the  patient  and  the  practitioner  when  the  latter 
was  employed  in  the  case. 

The  rule,  however,  does  not  apply  to  the  case  of  a  clairvoyant  or 
of  any  other  person  who  practises  a  system  which  has  no  recognition 
under  the  law  and  nothing  definite  in  the  way  of  rules  and  principles. 
Thus,  in  Nelson  v.  Harrington,^  said  Lyon,  J.:  "To  constitute  a 
school  of  medicine  under  this  rule,  it  must  have  rules  and  principles 
of  practice  for  the  guidance  of  all  its  members,  as  respects  principles, 
diagnosis,  and  remedies,  which  each  member  is  supposed  to  observe 
in  any  given  case.     Thus,  any  competent  practitioner  of  any  given 


1  This  rule,  however,  has  never  been  adopted,  at  least  so  far  as  I  have  been 
able  to  ascertain,  in  any  of  the  countries  of  Continental  Europe.  As  to  American 
cases,  see  Bowman  v.  Woods  (1  G.  Greene,  441);  Force  v.  Gregory  (63  Conn., 
167)  ;  Spead  v.  Tomlinson  (73  N.  H.  46) ;  Grainger  v.  Still  (187  Mo.  197) ; 
Shockley  v.  Tucker  (127  loiva  456). 

2  72  Wis.  591.    Cited  also  supra,  under  another  legal  proposition. 

124 


OPHTHALMIC  JURISPRUDENCE 

school  would  treat  a  given  ease  substantially  the  same  as  any  other 
competent  practitioner  of  the  same  school  would  treat  it.  One  school 
may  believe  in  the  potency  of  drugs  and  blood-letting,  and  another 
may  believe  in  the  principle  similia  similibus  curantur;  still  others  may 
believe  in  the  potency  of  water,  or  of  roots  and  herbs ;  yet  each  school 
has  its  own  peculiar  principles  and  rules  for  the  government  of  its 
practitioners  in  the  treatment  of  diseases.  Not  so,  however,  with  the 
clairvoyant  practice.  True,  the  practice  has  but  one  mode  of  ascer- 
taining what  the  disease  is,  and  the  remedy  therefor.  This  mode  has 
already  been  stated.  But  the  mode  in  which  a  physician  acquires  a 
knowledge  of  his  profession  has  nothing  to  do  with  his  school  or 
system  of  practice.  One  person  may  acquire  such  knowledge  from  cer- 
tain books ;  another  from  certain  other  books,  which  perhaps  teach  dif- 
ferent principles;  still  another  from  oral  communication,  as  lectures, 
et  cet.,  or  from  experience  alone ;  and  still  another  from  his  intuition 
Avhen  in  an  abnormal  mental  state ;  yet  these  differences  do  not  neces- 
sarily constitute  separate  schools  of  medicine." 

This  was  "a  case  of  first  impression,"  (as  mentioned  by  the  learned 
justice  himself  in  his  opinion)  but  it  is  now  the  settled  law. 

3.  Now  it  is,  furthermore,  absolutely  necessary  that  a  doctor, 
whether  his  field  of  work  be  limited  or  unlimited,  and  whether  his 
practice  be  chiefly  in  the  city,  or  in  a  town,  or  in  the  smallest  country 
village,  not  merely  possess,  but  that  he  also  actually  make  use  of  the 
skill  and  learning  which  the  law  requires  him  to  possess  in  accordance 
with  the  rules  above  stated.  He  must  not  be  negligent,  however  skill- 
ful he  may  be.  He  must  actually  exercise  his  skill.  Otherwise  he  is 
guilty  of  malpractice. 

It  is  not  essential  that  this  division  of  the  general  subject  be  greatly 
amplified,  but  here  it  is  certainly  important  to  lay  some  stress  on  a 
matter  Avhich  should  prove  of  interest  to  oculists,  who,  as  a  rule,  do 
rather  a  great  deal  of  innovating.  I  refer  to  the  matter  of  experi- 
mentation. On  this  head,  the  general  principle  is  quite  clear :  Thou 
shalt  not  experiment  on  mankind.  The  use  of  new  and  untried  rem- 
edies or  new  and  untried  operative  procedures,  are  alike  forbidden,  in 
the  case  of  man.  The  view  of  the  law  is  that  experimentation  should 
be  conducted  on  the  lower  animals.  Just  what  would  happen  to 
medical  progress  in  case  our  friends,  the  antivivisectionists,  should 
carry  their  point,  and  experimentation  on  animals  should  be  forbid- 
den also,  as  well  as  that  on  man,  is  a  trifle  unpleasant  to  think  about. 
Possibly,  in  the  words  of  Micawber,  we  should  "progress  in  a  retro- 
grade direction."  However,  the  matter  is  not  so  bad  as  it  looks  in  the 
light  of  the  general  rule.    There  is  one  exception :  The  doctor  may  in- 

125 


OPHTHALMIC  JURISPRUDENCE 

novate  in  the  ease  of  an  unusual  disease  (pellagra,  for  example)  or 
of  new  and  unusual  combinations  of  symptoms  in  old  diseases.  Even 
in  such  cases,  however,  he  must  be  altogether  able  and  ready  to  prove 
that  his  innovations  were  not  haphazard,  but  that  they  were  based  on 
things  already  known  and  that  they  were  carried  out  in  accordance 
with  a  definite  and  sensible  theory  of  some  benefit  to  accrue  to  the  sub- 
ject of  the  experiment  himself.^  Said  the  court,  in  Jackson  v.  Burn- 
ham:  2  ''There  must  be  some  criterion  by  which  to  test  the  proper 
mode  of  treatment  in  a  given  ease;  and,  when  a  particular  mode  of 
treatment  is  upheld  by  a  consensus  of  opinion  among  the  members  of 
the  profession,  it  should  be  followed  by  the  ordinary  practitioner;  ^  and 
if  a  physician  sees  fit  to  experiment  with  some  other  mode,  he  should 
do  so  at  his  peril.  In  other  words,  he  must  be  able,  in  the  case  of  dele- 
terious results,  to  satisfy  the  jury  that  he  had  reason  for  the  faith  that 
was  in  him,  and  justify  his  experiment  by  some  reasonable  theory." 
Again,  in  Carpenter  v.  Blake,^  said  the  court:  "Some  standard  by 
which  to  determine  the  propriety  of  treatment  must  be  adopted ;  other- 
wise experiment  will  take  the  place  of  skill,  and  the  reckless  experi- 
mentalist, the  place  of  the  educated,  experienced  practitioner.  If  the 
case  is  a  new  one,  the  plaintiff  must  trust  to  the  skill  and  experience  of 
the  surgeon  he  calls ;  so  must  he  if  the  injury  or  the  disease  is  attended 
with  injury  to  other  parts,  or  other  diseases  have  developed  themselves, 
for  which  there  is  no  established  mode  of  treatment.  But  when  the  case 
is  one  as  to  which  a  system  of  treatment  has  been  followed  for  a  long 
time,  there  should  be  no  departure  from  it,  unless  the  surgeon  who  does 
it  is  prepared  to  take  the  risk  of  establishing,  by  his  success,  the  pro- 
priety and  safety  of  his  experiment." 

Of  course  the  great  defect  of  the  law  with  regard  to  the  matter  of 
experimentation  and  iiniovation  (medically  speaking — we  admit  that 
the  subject  is  difficult)  lies  in  this  one  point,  namely:  That  it  makes  no 
kind  of  provision  whatever  for  the  finding  out  of  new  and  more  perfect 
methods  of  treatment  in  old  and  well-known  diseases  presenting  old  and 
well-known  combinations  of  symptoms.  For  instance,  an  oculist  desires 


1  In  this  connection  the  words  of  Aristotle  with  reference  to  the  Ancient 
Egyptian  law,  are  interesting :  ' '  Even  in  Egypt  the  physician  was  allowed  to 
alter  the  mode  of  cure  which  the  law  prescribed  to  him,  after  the  fourth  day. 
But  if  he  did  so  sooner,  he  acted  at  his  own  peril. ' ' — Politics,  Book  III,  c.  15. 

2  20  Col.  533. 

3  These  words  (which  have  been  italicized  by  the  present  writer)  are,  though 
oMter  dictum,  extremely  interesting.  They  suggest  this  question:  Have  some 
practitioners  a  better  right  to  experiment  ou  human  subjects  than  have  others? — 
a  question  which,  so  far  as  I  have  been  able  to  ascertain,  has  never  appeared  for 
direct  decision  in  any  court  of  last  resort. 

4  60  Barb.  488.  ("  Barb. ' '  is  short  for  ' '  Barbour. ' '  The  Barbour  reports  are 
certain  N.  Y.  reports  which  bear  the  name  of  their  reporter.) 

126 


OPHTHALMIC  JURISPRUDENCE 

to  ascertain  whether  the  injection  of  certain  substances  into  the  ante- 
rior chamber  of  the  eye  will  result  in  the  complete  absorption  of  a  senile 
cataract.  Now,  senile  cataract  is  by  no  means  a  "new"  disease,  but  per- 
haps older  than  the  human  race  itself,  and,  furthermore,  for  this  condi- 
tion there  exists  a  well-established  line  of  operative  treatment.  Yet,  to 
forbid  the  innovator  from  trying  his  injection  (with  or  without  pre- 
vious animal  experimentation,  according  to  his  judgment)  would,  be- 
yond question,  be  to  hinder  the  onward  march  of  medicine.  Even 
though  the  results  of  the  experiment  should  be  unfavorable  to  the  in- 
dividual, something  might  very  conceivably  have  been  ascertained  that 
would  prove  immensely  serviceable,  indirectly  at  least,  in  many  an 
after  case.  Of  course,  there  should  be  a  reasonable  chance  that  the 
innovation  would  prove  to  be  an  improvement,  even  for  the  subject  of 
the  experiment  himself,  over  methods  long  established.  Perhaps  the 
dictum  in  the  Colorado  case  with  reference  to  "ordinary"  doctors, 
might  help  out,  should  an  innovator  in  the  case  of  an  "old"  disease, 
presenting  nothing  but  old  and  well-known  combinations  of  symptoms, 
get  into  legal  difficulties  by  reason  of  his  experimentation,^ 

Other  matters  coming  under  the  head  of  negligence,  or  failure  act- 
ually to  use  and  employ  the  reasonable  skill  and  knowledge  which  the 
law  requires  a  physician  to  possess,  may  thus  be  stated  briefly:  A 
physician  is  liable  for  giving  improper  directions  and  for  failure  to 
give  proper  ones.  He  is  also  liable  for  failure  to  call  counsel  in  proper 
cases.  He  is  just  as  truly  liable  for  an  improper  opinion  (if  damages 
ensue  therefrom)  as  he  is  in  the  case  of  actual  treatment  given.  He 
is  bound  to  use  pure  and  proper  drugs  and  aseptic  instruments,  and  to 
write  correct  prescriptions.  A  physician  is  liable  for  the  malpractice 
of  his  partner,  though  he  himself  had  nothing  to  do  with  the  case.  He 
is  also  responsible  for  the  acts  of  a  nurse,  if  the  nurse  was  acting 
according  to  his  instructions;  and,  further,  even  in  other  instances,  if 
the  nurse  was  placed  in  charge  of  the  case  by  the  physician  in  question 
who  thus  by  implication  warranted  her  skill  and  carefulness.  A  phy- 
sician is  not,  however,  liable  for  the  acts  of  a  nurse  in  a  public  institu- 
tion in  which  the  physician  himself  has  no  direct  control  over  the 
nurses.     A  physician  is  not  responsible  for  the  malpractice  of  a  phy- 


1  The  leading  ease  on  this  subject  is  the  Colorado  case  above  mentioned,  Jackson 
V.  Burnham.  Here  the  plaintiff  had  had  severe  phimosis,  and  the  defendant, 
instead  of  slitting  up  the  prepuce,  had  applied  to  the  penis  a  flaxseed-meal  poultice. 
Gangrene  ensued,  together  with  extensive  sloughing,  and  it  became  necessary  to 
amputate  "his  penis  wholly  from  the  body."  The  district  court  gave  judgment 
to  the  plaintiff.  This  judgment  was  reversed  by  the  Court  of  Appeals,  but  sus- 
tained by  the  court  of  last  resort  (Supreme  Court).  Here,  however,  the  inno- 
vation was  clearly  not  founded  on  things  already  known  or  on  a  definite  and 
well-formed  theory  of  benefit  to  accrue  to  the  subject  of  the  experiment  nimself. 

127 


OPHTHALMIC  JURISPEUDENCE 

sician  in  whose  charge  he  leaves  a  case,  provided  the  two  are  in 
independent  practice  (i.  e.,  not  in  partnership)  or  of  a  specialist  in 
independent  practice  to  whom  the  case  has  been  referred  by  him. 

Sometimes  the  patient  himself  is  negligent,  and,  under  certain  cir- 
cumstances, this  ' '  contributory  negligence, "  as  it  is  called,  is  a  complete 
defense  against  a  claim  for  malpractice.  However,  if  the  acts  of  the 
patient  did  not  produce  the  injury,  but  merely  aggravated  it,  they  are 
not  a  complete  defense,  but  may  be  shown  only  "in  mitigation  of  dam- 
ages"— i.  e.,  to  diminish  the  amount  of  the  judgment.  An  important 
principle  is  that,  if  the  injury  produced  by  the  patient's  negligence 
cannot  be  separated  from  that  produced  by  the  negligence  of  the  physi- 
cian, the  patient  cannot  recover  damages. 

Some  of  the  commonest  forms  of  contributory  negligence  consist 
in  (a)  failure  to  follow  the  physician's  directions  (b)  not  giving  to 
the  physician  full  information  with  respect  to  the  case,  (c)  the  simul- 
taneous employment  by  the  patient  or  his  friends  of  other  treatment  in 
connection  with  that  of  the  regular  physician.^ 

4.  The  fourth  duty  of  the  physician  is,  in  eases  of  doubt  to  use 
his  best  judgment.  This  is  a  difficult  rule  to  understand,  because  its 
meaning  is  indefinite.  Nevertheless,  the  rule  exists,  and  is  exceedingly 
important.  The  conception  is  that  a  physician,  though  possessed  of  a 
reasonable  degree  of  learning  and  skill  and  though  exercising  care  in 
its  application,  is  now  and  then  confronted  by  peculiar  conditions  in 
which  he  nuist  use  his  own  individual  judgment  instead  of  relying  on 
the  common  stock  of  knowledge.  Whether,  in  such  conditions,  it  is 
actually  incumbent  on  the  physician  to  experiment,  is  a  question  which, 
so  far  as  I  have  been  able  to  ascertain,  has  never  been  decided.  Prob- 
ably, should  the  question  arise,  it  would  be  decided  in  the  negative. 
However,  it  is  likely  that  an  actual  case  or  two  will  do  the  utmost  pos- 
sible service  in  the  way  of  making  clear  this  very  difficult  rule. 

In  a  rather  early  case.  West  v.  Martin,^  the  defendant  was  sued 
for  unskilfullness  in  the  setting  of  the  plaintiff's  leg.  The  defendant, 
among  other  matters,  pleaded  "mere  error  of  judgment."  But  said 
Ewing,  J.,  in  the  Supreme  Court:     ".     .     ,     there  may  be  responsi- 


1  A  discussion  of  this  matter  would  lead  us  into  the  never-ending  realm  of 
medical  folklore.  I  cannot,  however,  refrain  from  mentioning  a  case  in  which  I 
was  much  blamed  because,  after  an  entropium  operation  performed  by  me, 
erysipelas  supervened.  On  inquiry,  I  learned  from  the  patient  himself  that  his 
mother  had  twice  removed  the  dressings  and  applied  each  time  for  several  hours 
a  poultice  of  warm  cow's  dimg.  I  also  knew  of  a  case  where  tetanus  set  in  fol- 
lowing the  application  of  road  mud  to  a  burn.  Without  doubt,  if  proper  investi- 
gation were  made  in  all  cases  of  malpractice,  the  matter  of  folk-mediclue  would 
assume  a  more  important  aspect  in  connection  with  the  subject  of  malpractice 
defence. 

2  31  Mo.  375  (1861). 

128 


OPHTHALMIC  JURISPRUDENCE 

bility  where  there  is  no  neglect,  if  the  error  of  judgment  be  so  gross  as 
to  be  inconsistent  with  the  use  of  that  degree  of  skill  that  it  is  the  duty 
of  every  surgeon  to  bring  to  the  treatment  of  a  case  according  to  the 
standard  indicated." 

In  Dubois  v.  Decker/  the  plaintiff,  having  a  crushed  foot,  was 
taken  to  an  almshouse,  in  which  institution,  some  nine  or  ten  days 
later,  the  defendant  amputated  the  leg  above  the  ankle  joint,  "Six  or 
seven  days  thereafter,  gangrene  having  set  in,  he  again  amputated  the 
leg.  this  time  at  the  knee-joint.  After  the  second  amputation  the  leg 
did  not  properly  heal,  but  became  a  running  sore,  and  at  the  time  of 
the  trial  the  bone  protruded  some  three  or  four  inches. ' '  The  position 
taken  by  the  plaintiff  was  that  the  second  amputation  had  been  necessi- 
tated, and  the  deleterious  results  which  followed  it  had  been  caused 
by  the  delay  of  nine  or  ten  days  in  the  performance  of  the  first  opera- 
tion. There  was  expert  evidence  to  show  that  this  w^as  really  the  case. 
The  defendant  alleged  "mere  error  of  judgment,"  stating  that  he  had 
"waited  ten  days  before  operating  for  the  purpose  of  seeing  whether 
the  foot  could  not  be  saved,  and  that  a  physician  and  surgeon  will  not 
be  held  liable  for  mere  errors  in  judgment."  But  said  Justice  Haight : 
".  .  .  his  judgment  must  be  founded  upon  his  intelligence.  .  .  . 
he  should  have  known  the  probable  consequences  that  would  follow 
from  the  crushing  of  the  bones  and  tissues  of  the  foot. ' ' 

These  two  instances  serve  as  well  as  any  that  could  be  selected  to 
show  the  condition  of  the  law  with  regard  to  this  very  important,  yet 
very  indefinite,  matter.  The  cases,  unfortunately,  relate  almost  ex- 
clusively to  the  negative  side  of  the  question — i.  e.,  as  to  what  does  not, 
rather  than  to  what  actually  does,  constitute  the  use  of  one's  own  best 
judgment.2 

Miscellaneous  matters. — An  interesting  question  arises  with  respect 
to  the  medical  or  surgical  malpractice  of  persons  not  licensed  as  physi- 
cians. A  "graduate  optician,"  for  instance,  employs  the  title  of 
"doctor"  and  "eye  specialist"  and  declares  to  a  patient,  that  he  is  a 
practitioner  of  medicine  and  that  he  can  cure  the  patient's  affection 
by  means  of  a  pair  of  spectacles.     The  patient  is  suffering  from 


1130  N.  Y.  331  (1891). 

2  We  might  add,  as  being  somewhat  relevant  to  this  rule,  the  legal  principle 
that  a  physician  who  does  not  feel  himself  competent  to  treat  a  given  case,  should 
never,  for  that  reason  only,  rely  upon  his  judgment  in  that  case,  for  the  "judg- 
ment" rule  has  not  for  its  object  the  protection  of  incompetency.  In  all  cases 
where  a  physician  feels  himself  to  be  incompetent,  his  duty  is  to  recommend  his 
patient  to  employ  another  doctor,  whether  specialist  or  general  practitioner.  If, 
however,  the  patient,  after  being  thus  recommended,  is  willing  and  desirous  that 
the  first  physician  continue  in  charge  of  his  case,  then  the  first  physician  is  not 
liable  (as  suggested  some  distance  supra)  for  anything  but  the  very  grossest 
negligence. 

129 


OPHTHALMIC  JURISPRUDENCE 

syphilis  of  the  retina  and  optic  nerve,  and  in  consequence  of  the  negli- 
gence of  the  graduate  optician,  he  fails  to  receive  the  proper  kind  of 
medical  attention,  and  his  sight  is  destroyed.  Is  the  optician  liable? 
Again,  a  druggist  treats  an  injured  finger,  pretending  the  while  to  the 
patient  that  he  is  a  physician,  and  damage  ensues  as  a  result  of  the 
improper  treatment.  In  all  such  cases  the  defendant  is  liable,  precisely 
as  if  he  were  really  a  physician.^  A  still  stronger  case  is  that  of  Nelson 
V.  Harrington  2  in  which  the  defendant  was  a  clairvoyant  whose 
practice  it  was  to  place  himself  in  a  kind  of  trance,  and,  from  that 
coign  of  vantage,  to  diagru)se  and  prescribe  for  his  patients.  He  had 
never  declared  himself  to  be  a  physician,  but,  on  the  contrary,  had 
often  asserted  that  he  had  no  medical  knowledge.  Nevertheless,  the 
judgment  was  against  him  both  at  the  trial  and  in  the  higher  court. 
However,  in  this  connection  it  is  to  be  noticed  that  where  the 
therapeutist  or  the  surgeon  does  not  profess  to  be  a  physician,  and  at 
the  same  time  gives  the  advice  or  the  service  as  a  friend  or  neighbor 
merely,  he  incurs  no  liability.  The  leading  case  ^  upon  this  point  pos- 
sesses an  especial  interest  for  oculists.  The  defendant  was  a  midwife, 
practising  in  Boston,  Mass.  She  attended  the  mother  of  the  plaintiff 
when  the  plaintiff  was  born,  and,  three  days  later,  was  shown  one  of  the 
plaintiff's  eyes,  which  seemed  to  be  inflamed.  The  defendant  declared  to 
the  plaintiff's  mother  that  the  trouble  was  "nothing  serious,  that  it  re- 
sulted from  too  much  light,"  and  she  then  "directed  the  witness  to 
darken  the  room  and  to  dip  a  linen  cloth  in  water  and  place  it  on  the 
child 's  eye. ' '  The  room  was  darkened  accordingly,  and  the  application 
made.  Next  day  the  defendant  again  declared  that  the  trouble  was 
' '  nothing  serious, ' '  and  that  she  could  cure  it,  and,  this  time,  she  made 
an  application  of  rose-water.  Two  days  after  the  tirst  eye  presented 
symptoms  of  disease,  the  second  e.ye  became  affected.  However,  for  two 
weeks  the  defendant  came  in  twice  daily  and  applied  her  washes  to  the 
child's  eyes.  The  plaintiff's  mother  said  to  the  defendant  that  she  was 
alarmed  about  the  child's  eyes,  and  thought  some  competent  physician 
should  be  called  in.  The  defendant,  however,  replied  that  she  need  not 
be  alarmed ;  that  she,  the  defendant,  could  cure  the  disease ;  that  she 
had  cured  with  her  washes  several  children  so  afflicted,  and  mentioned 
the  child  of  one  Mrs.  Stevens,  whose  eyes  were  much  sorer  than  the 
plaintiff's,  and  said  she  had  cured  the  child's  eyes  with  her  washes; 
that  the  defendant  also  told  her  not  to  call  in  a  doctor,  saying  that ' '  the 
doctors  spoiled  the  eyes  of  half  the  children,"  that  "the  doctors'  washes 


1  Mathei  v.  Wooley,  69  III.  App.  655. 

2  72  Wis.  591. 

3  Higgins  V.  McCabe,  126  Mass.  13. 

130 


OPHTHALMIC  JURISPRUDENCE 

would  burn  the  child's  eyes  out";  that  she  then  told  her  to  send  for  a 
fresh  egg  and  have  it  beaten  up  with  sugar,  and  wash  the  child's  eyes 
with  that, ' '  etc.  The  result  was  that  the  child  became  totally  blind,  and 
there  was  evidence  from  regular  physicians  to  show  that,  had  other  and 
more  powerful  remedies  been  seasonably  employed,  they  would  prob- 
ably have  effected  a  cure.  The  court,  however,  said :  ' '  The  defendant 
was  originally  employed  only  as  a  midwife.  .  .  .  there  was  no 
competent  evidence  that  the  treatment  of  diseases  of  the  eyes  which 
might  be  developed  in  the  child  was  embraced  in  the  duties  which  the 
defendant  undertook  as  a  midwife.  ...  A  physician  must  apply 
the  skill  and  learning  which  belong  to  his  profession,  but  a  person  who, 
without  special  qualifications,  volunteers  to  attend  the  sick,  can  at  most 
be  only  required  to  exercise  the  skill  and  diligence  usually  bestowed 
by  persons  of  like  qualifications,  under  like  circumstances.  To  hold 
otherwise  would  be  to  charge  responsibility  in  damages  upon  all  who 
make  mistakes  in  the  performance  of  kindly  offices  for  the  sick.^ 

A  further  miscellaneous  matter,  and  one  of  much  importance,  is 
that,  in  some  states,  the  defendant  in  a  personal  injury  suit  (to 
which  variety  of  actions,  of  course,  malpractice  suits  belong)  is  wholly 
devoid  of  power  to  oblige  the  plaintiff  to  submit  to  a  physical  examina- 
tion for  the  purpose  of  determining  whether  or  not  his  alleged  injuries 
do  actually  exist,  and  whether,  in  case  they  exist,  they  are  actually  of 
as  great  extent  and  severity  as  the  plaintiff  has  alleged.  This  would 
seem  to  be  a  very  unjust  holding,  but  it  is  actually  the  law  in  Illinois,^ 
Texas,  Montana,  Delaware,  Massachusetts,  South  Carolina,  Utah,  and 
also  in  the  courts  of  the  United  States.  To  the  contrary,  however, 
hold  the  courts  of  Ohio,  Kentucky,  Georgia,  Alabama,  Missouri, 
Kansas,  Arkansas,  Michigan,  Indiana,  Wisconsin,  Minnesota,  Iowa, 
Washington,  California,  Colorado,  Maryland,  Nevada,  Oklahoma,  and 
North  Dakota.     The  courts  of  New  York  formerly  held  against  the 


1  This  case,  however  much  one 's  sympathies  may  go  out  to  the  child,  is  never- 
theless undoubtedly  good  sense  as  well  as  good  law.  One  cannot,  in  fact,  help 
recalling,  in  this  connection,  the  words  of  Marshall  D.  Ewell  (Medical  Jurispru- 
dence, p.  291)  :  "If  a  patient  voluntarily  employs  in  one  art  a  man  who  openly 
exercises  another,  his  folly  has  no  claim  to  indulgence.  The  old  Mahommedan  case 
cited  by  Puffendorf  with  approbation  is  very  much  to  the  point:  A  man  who  had 
a  disorder  in  his  eyes  called  on  a  farrier  for  a  remedy  who  gave  him  one  com- 
monly used  upon  his  quadrupedal  patients.  The  man  lost  his  sight  and  brought  an 
action  against  the  farrier  for  damages,  but  the  judge  held  that  no  action  would 
lie,  for  if  the  complainant  had  not  himself  been  an  ass  he  would  never  have 
employed  a  horse-doctor. ' ' 

2  I  personally  know  two  Illinois  physicians  (in  independent  practice)  who  are 
considerably  out  of  pocket  by  reason  of  the  fact  that  the  court  which  heard  their 
cases  refused  to  compel  the  plaintiff  to  submit  to  an  examination  of  his  alleged  in- 
juries. The  condition  of  the  law  on  this  point  ought  by  all  means  to  be  regulated 
by  statute  in  every  State  of  the  Union. 

131 


OPHTHALMIC  JURISPRUDENCE 

existence  of  the  power,  but  the  decisions  of  these  courts  have  been 
overruled  by  a  statute.  There  are  also  statutes  to  the  same  effect  in 
Florida  and  New  Jersey. 

The  courts  which  hold  against  the  existence  of  the  power,  assert 
that  the  defendant,  in  ease  the  plaintiff  refuses  to  submit  to  a  physical 
examination,  may  still  find  a  sufficient  protection  against  injustice  in 
the  privilege  which  his  lawyer  possesses  of  directing  the  jury's  atten- 
tion to  the  fact  of  the  plaintiff's  refusal.  But,  on  this  point,  said  Beck, 
J. :  1  "  This  position  is  not  correct.  The  defendant  is  left  to  depend 
upon  the  inference  of  the  jury,  which  might  or  might  not  have  been 
exercised,  instead  of  having  the  truth  disclosed  by  direct  and  positive 
evidence.  The  law  will  not  require  it  to  depend  upon  such  inference 
when  it  can  afford  the  means  of  producing  competent  evidence  upon 
the  question  in  issue. ' '  - 

Still  another  miscellaneous  matter  relates  to  the  effect  which  a 
judgment  rendered  by  a  court  of  law  in  favor  of  a  physician  for  his 
fee,  has  on  the  right  of  the  patient,  at  some  later  period,  to  sue  the 
physician  for  malpractice.  It  is  a  well-known  fact  that  not  infrequently 
when  a  suit  is  brought  by  a  physician  for  his  fee  he  is  met  by  a  counter- 
claim for  malpractice.  Then  both  matters  are  litigated  together.  If 
the  jury  decides  that  the  physician  has  not  been  guilty  of  malpractice, 
then  (provided  the  claim  for  fees  be  just  and  reasonable,  not  already 
paid,  etc.),  the  court  will  give  to  the  physician  a  judgment  for  his  fees 
whereas  if,  on  the  other  hand,  the  jury  holds  adversely  on  the  question 
of  the  doctor's  treatment,  then  not  only  does  the  doctor  fail  to  secure  a 
judgment  for  his  fees,  but,  generally,  he  is  mulcted  in  compensatory 
damages  besides.  But  now  suppose  the  doctor,  when  he  sues  for  his 
fees,  is  not  confronted  by  a  claim  for  malpractice,  and  that  he  actually 
recovers  a  judgment  against  the  plaintiff  for  the  value  of  his  services, 
and  that,  further,  at  some  later  date,  the  patient  decides  to  sue  the 
physician  for  malpractice.  Is  the  suit  for  malpractice  barred,  or  is  it 
not? 

The  answer  is  that,  in  the  vast  majority  of  jurisdictions,  it  is,  un- 
doubtedly, barred.  The  great  courts  of  New  York,  New  Jersey,  and 
West  Virginia  so  hold  in  language  clear  and  unmistakable.^     Some 


1  In  Scliroeder  v.  C.  E.  I.  &  P.  Ky.,  47  la.  375. 

2  For  an  extended  discussion  of  this  subject  see  an  article  by  the  present  writer, 
entitled  "May  the  Plaintiff  in  a  Personal  Injury  Suit  be  Compelled  to  Exhibit 
His  Injuries?  If  so,  Under  What  Circumstances?"  in  the  Michigan  Law  Review, 
Vol.  I,  Nos,  3  and  4,  p.  193  and  p.  277,  Dec,  1902,  and  Jan.,  1903. 

It  is  interesting  to  note  that  the  question  in  hand,  though  much  adjudicated  in 
America,  has  never  arisen  for  decision  in  England. 

8  Bellinger  v.  Craigue,  31  Barb.,  534;  Gates  v.  Preston,  41  N.  Y.  113;  Blair  v. 
Bartlett,  75  N.  Y.  150;  Dunham  v.  Bower,  77  A^.  Y.  76;  Ely  v.  Wilbur,  49 
N.  J.  L.  685. 

132 


OPHTHALMIC  JURISPRUDENCE 

courts  make  a  distinction,  however,  between  cases  in  which  malpractice 
was  actually  pleaded  as  a  defense,  and  those  in  which  a  judgment  for 
the  fees  was  taken  hy  default,  or  where,  though  the  defendant  in  the 
suit  did  actually  appear,  he  nevertheless  defended  on  some  other  ground 
than  that  of  malpractice.  Such  courts  hold  that,  in  the  latter  two  con- 
tingencies, the  suit  for  malpractice  is  not  barred.  However,  even  in 
the  great  majority  of  states  where  the  question  has  never  as  yet  arisen 
in  a  court  of  last  resort,  the  decisions  of  the  courts  of  New  York,  New 
Jersey,  and  West  Virginia,  would,  by  reason  of  the  great  persuasive 
authority  of  these  courts,  almost  certainly  be  followed. 

A  final  miscellaneous  question  relating  to  the  American  law  of  mal- 
practice is :  May  a  valid  judgment  ever  be  rendered  against  a  physician 
for  malpractice  in  the  total  absence  of  expert  testimony  against  his 
manner  of  treatment?  The  answer  is.  Yes,  in  certain  very  exceptional 
circumstances  (namely  where  the  existence  of  malpractice  is  patent  to 
ordinary  comprehension)  such  a  judgment  in  the  trial  court  would  most 
undoubtedly  stand.  Just  what  the  necessary  circumstances  are  to  enable 
a  court  to  dispense  with  expert  testimony  in  a  malpractice  case,  is  al- 
ways a  question  of  fact  (not  of  law)  but  the  following  are  typical  and 
also  actual  instances  of  such  circumstances,  or  rather  sets  of  circum- 
stances. In  j\Ioratzky  v.  Wirth,^  an  accoucheur  permitted  a  portion 
of  the  placenta,  2  in,  long  by  %  in.  in  thickness,  to  remain  in  the 
uterus,  by  which  neglect,  as  was  alleged,  the  plaintiff  suffered  from 
septicemia,  resulting  in  the  loss  of  her  leg.  Held,  that  expert  testimony 
was  not  necessary.  In  Lewis  v.  Dwinnell,^  a  physician  failed  to  dis- 
cover, as  was  alleged,  an  extensive  perineal  rupture.  Held,  that  ex- 
pert testimony  could  not  be  dispensed  with.  In  Richardson  v.  Carbon 
Hill  Coal  Co.,^  a  physician  who  discovered  a  fracture  of  the  femur  8 
inches  from  the  hip  joint,  did  not  discover,  as  was  alleged,  a  co- 
existing and  very  manifest  dislocation  of  the  hip.  Held,  that  expert 
testimony  was  not  necessary.  And,  in  Gedney  v.  Kingsley,'*  a  physician, 
after  the  reduction  of  a  Colles'  fracture,  put  on  the  bandages  so  tightly 
that,  as  was  alleged,  great  ulcers  formed  and  the  flesh  sloughed  off. 
Held,  that  expert  testimony  was  not  necessary.  However,  in  James  v. 
Crockett,^  when  a  physician  after  repeated  and  careful  examinations 
and  a  consultation  with  a  competent  fellow  practitioner,  did  not  dis- 
cover a  dislocation  of  the  arm,  it  was  held  that  expert  testimony  could 
not  be  dispensed  with. 


1  67  Minn.  46.     2  84  Me.  497.     3  10  Wash.  648. 
*  16  N.  Y.  Supp.  792.     s  34  N.  B.  540. 


133 


OPHTHALMIC  JURISPRUDENCE 

Legal  considerations  regarding  malpractice  in  England. 

The  law  of  medical  and  surgical  malpractice  is,  in  England,  very 
much  the  same  as  in  America.  In  England,  for  instance,  a  physician 
(if  not  under  obligations  by  reason  of  some  official  position)  is  never 
obliged  to  accept  a  case,  no  matter  how  great  may  be  the  urgency  of  the 
call  or  the  importunity  of  the  caller.  But,  a  case  once  accepted,  the 
doctor  is  under  stringent  legal  obligations  to  continue  in  charge  of  that 
case — exactly  as  in  America.  In  England,  too,  as  in  this  country,  the 
fact  of  gratuitous  treatment  does  not  alter  a  physician's  responsibility 
for  malpractice,  nor  is  a  contract  with  the  patient,  or  with  those  who 
stand  to  him  in  loco  parentis,  of  the  very  least  validity.  Such  a  con- 
tract is,  as  here,  ' '  opposed  to  public  policy  and  therefore  void. ' ' 

The  rule  which  regulates  the  quantum  of  skill,  however,  which  a 
physician  is  supposed  to  bring  to  a  case  is  different,  in  England,  from 
what  it  is  (or  rather  they  are)  in  America.  In  America,  as  we  have 
seen,  there  exist  three  rules:  (1)  That  the  physician  must  use  such 
knowledge  and  skill  as  prevail  in  the  particular  locality  in  which  he 
practises.  (2)  Such  knowledge  and  skill  as  prevail  in  such  localities 
generally.  (3)  Such  as  are  possessed  and  used  by  highly  educated 
physicians.  The  second  rule,  in  America,  we  saw  to  be  by  far  the 
most  frequently  adopted  and  enforced.  Now,  in  England,  the  rule  is 
that  a  physician  must  possess  and  use  a  "reasonable,"  or  "ordinary," 
degree  of  knowledge  and  skill.  Not  only  in  the  cases  but  in  the  text- 
books and  cyclopedias,  the  words,  "reasonable"  and  "ordinary"  occur 
with  great  persistency.  Thus,  in  Jones  v.  Fay  (1865)  "Any  one  who 
attempts  to  treat  a  sick  person  (otherwise  than  on  sudden  emergency) 
will  be  liable  for  any  lack  of  such  skill  as  an  ordinary  qualified  medical 
practitioner  possesses."  Again,  the  Encyclopedia  of  the  Laws  of  Eng- 
land" :  1  "  A  medical  practitioner,  whether  qualified  or  not,  is  responsi- 
ble in  a  civil  action  for  damages  or  a  criminal  prosecution  for  man- 
slaughter, in  case  of  the  lack  of  reasonable  care  and  skill.  In  civil  ac- 
tions everything  depends  on  the  interpretation  of  the  qualifying  word 
reasonable,  and  this  is  for  the  jury  to  interpret."  The  idea  of  locality, 
which  seems  to  be  the  central,  the  controlling,  notion  in  the  American 
view  of  medical  responsibility,  possesses,  in  English  law,  absolutely  no 
place  whatever.2  indeed,  in  one  case,  that  idea  is  expressly  rejected. 
Thus,  Garrow,  B. :  "It  matters  not  whether  the  individual  consulted  be 
the  President  of  the  College  of  Physicians  or  the  humblest  bone-setter 


1 1900-09,  Vol.  IX,  p.  125. 

2  Has  not  the  small  geographical  area  of  England,  together  with  the  large 
geographical  area  of  the  United  States,  had  much  to  do  with  the  formation  of  this 
distinction  ? 

134 


I 


OPHTHALMIC  JURISPRUDENCE 

in  the  village,  he  ought  to  bring  into  the  case  ordinary  skill,  care,  and 
diligence. ' ' 

Lately,  however,  and  unfortunately,  there  has  been  developing  a 
tendency  on  the  part  of  High  Court  Judges  to  apply  a  stricter  rule  of 
accountability.  This,  it  seems  to  me,  is  a  step  in  the  wrong  direction 
undoubtedly,  for  the  proper  rule  of  accountability  in  a  calling  in  which 
so  much  is,  from  the  very  nature  of  things,  a  matter  of  individual  judg- 
ment in  the  individual  case,  should  be  that  the  practitioner  is  to  be  held 
responsible,  not,  as  in  Germany,  for  the  lack  of  a  very  high  degree  of 
skill,  but,  as  in  France,  for  gross  negligence  or  unskillfuluess  only.  The 
trouble  with  the  legal  view  both  in  England  and  in  America  (a  fortiori 
in  Germany)  is  that  it  regards  the  practice  of  medicine  and  surgery 
as  something  like,  for  instance,  the  industry  of  cabinet-making.  Give 
to  a  cabinet-maker  the  proper  materials  and  the  proper  tools,  and,  if 
he  be  neither  unskillful  nor  negligent,  he  will  make — and  always  make 
— for  instance,  a  proper  sort  of  chair.  Then,  too,  the  task  of  making 
a  given  kind  of  chair,  for  instance,  is  always  and  forever  the  same,  and 
few,  if  any,  competent  workmen,  would  materially  disagree  as  to  how 
that  particular  variety  of  chair  should  be  made.  In  the  practice  of 
medicine  and  surgery,  however,  the  case  is  very  different.  In  such  a 
calling,  a  given  variety  of  task  is  not  always  and  forever  the  same.  In 
fact,  in  such  a  vocation,  the  task,  one  is  almost  tempted  to  assert,  is 
never  twice  alike.  To  a  great  extent,  therefore,  in  such  an  occupation, 
the  workman's  individual  judgment  will  always  be  of  necessity  engaged, 
and  different  workmen  will,  of  course,  ever  be  of  very  different  opin- 
ions. Only  the  great  settled  governing  rules  and  principles  should  al- 
ways be  adhered  to — asepsis,  for  instance,  and  the  necessity  of  liga- 
turing a  large-sized  w^ounded  artery — the  non-adherence  to  these,  i.  e., 
gross  unskillfulness  or  gross  negligence,  might  very  properly  be  chas- 
tized by  the  courts.  This,  as  said  already,  is  the  rule  in  France,  and, 
again,  may  we  not  declare  avec  raisan  that  they  do  really  "order  these 
things  better  in  France?" 

To  hold  a  medical  man  responsible  for  a  high  degree  of  skill,  is  to 
insist  that  he  shall,  under  legal  sanction,  possess  a  high  degree  of  judg- 
ment. This,  of  itself,  would  be  bad  enough,  for  rules  in  the  realm  of 
judgment  have  but  little  application;  but  where,  as  in  England  and 
America,  that  high  degree  of  judgment  which  is  legally  required,  would 
have  to  be  submitted  to  the  further  judgment  of  twelve  often  illiterate 
men,  "assisted"  by  casual  (instead  of  official)  expert  witnesses,  who 
are  sometimes  not  even  licensed  physicians,  and  concerning  whose  abil- 
ity to  "assist"  in  the  matter  in  hand,  the  jury  are  about  as  incompetent 
to  decide  as  they  are  of  determining  for  themselves  the  medical  ques- 

135 


OPHTHALMIC  JURISPRUDENCE 

tions  at  issue,  then  the  medical  defendant  simply  plays  in  a  law  court  a 
game  of  chance  and  with  the  odds  decidedly  against  him  at  that. 

And,  in  England,  even  under  such  circumstances,  the  jury  might, 
if  they  saw,  or  thought  that  they  saw,  occasion,  assess  punitive,  as  well 
as  compensatory  damages! 

In  England,  as  in  America,  one  who  poses  as  a  specialist  is  respon- 
sible for  a  higher  degree  of  skill  than  is  a  general  practitioner.  I  have 
never  been  able  to  find  on  this  point  any  ophthalmic  cases,  but  it  is, 
undoubtedly,  the  law  as  to  specialism  generally. 

In  England,  too,  one  who  copies  an  erroneous  prescription,  as,  for 
example,  from  a  text-book,  or  a  journal  article,  "adopts  the  error" 
"and  is  liable  for  any  resulting  injury." 

In  England,  however,  a  medical  man  is  not  liable  for  disastrous 
consequences  which  ensue  upon  the  following  of  his  "mere  friendly 
street-opinion." 

Legal   co)isideratimis   regarding   wAilpractice   in  France. 

The  question  of  malpractice  in  civil  cases,  is,  of  course,  never  sub- 
mitted to  a  jury  in  France,  for  the  simple  reason  (as  stated  in  the 
division  on  courts  and  basic  legal  principles)  that,  in  France,  there  is 
never  a  jury  in  a  civil  proceeding.  Thus,  a  civil  suit  for  malpractice 
can  be,  and  as  a  fact  generally  is,  in  France,  conducted  very  quietly, 
and,  in  general,  if  judgment  is  not  delivered  against  the  physician,  the 
public  learns  but  little  about  the  affair.  In  a  common  law  country, 
such  as  ours,  this  phase  of  the  French  expert  system  could  not,  of 
course,  be  adopted,  for,  with  us,  there  must  assuredly  be  juries ;  but  a 
person  cannot  help  reflecting  on  the  manifest  justness  and  fairness  of 
the  French  method  to  physicians  who  have  been  improperly  accused  of 
malpractice. 

In  France,  moreover,  as  mentioned  already,  a  physician  is  respon- 
sible only  for  "clumsy  mistake,"  "gross  imprudence  or  negligence," 
"ignorance  of  those  things  which  a  man  of  the  profession  ought  surely 
to  understand."  In  the  language  of  a  text-book,^  "But,  as  soon  as  there 
arises  a  possibility  of  discussion  as  to  the  value  and  efficacy  of  the 
treatment  which  has  been  employed,  upon  the  propriety  of  an  opera- 
tion which  has  been  performed,  as  soon,  in  other  words,  as  it  becomes 
necessary,  in  order  to  determine  whether  or  not  a  physician  has  been 
at  fault,  to  trench  upon  questions  exclusively  technical  and  scientific, 
wlien,  in  a  ivord,  the  fault  does  not  appear  manifestly?  the  courts 


1  Manuel  Pratique  de  Droit  Medical,  par  Simou-Auteroelie,  Paris,  1908,  p.  186. 

2  The  italics  do  not  appear  in  the  original. 

136 


OPHTHALMIC  JURISPRUDENCE 

recognize  of  themselves  their  incompetence  in  this  matter. ' '  *  Thus  it 
would  seem  that,  in  France,  a  physician  is  held  responsible  for  mal- 
practice only  in  that  particular  class  of  cases  in  which,  as  we  have 
remarked  heretofore,  an  American  court  delivers  a  judgment  in  the 
total  absence  of  expert  testimony. 

In  France,  however,  there  exists  no  law  providing  that  a  physi- 
cian's practice  in  any  particular  case  be  tested  by  the  rules  and  prin- 
ciples of  his  own  school.2 

Legal  considerations  regarding  malpractice  in  Germany. 

In  Germany,  as  previously  remarked,  a  physician  is  responsible  if 
he  does  not  exercise  ' '  a  high  degree  of  skill, "  "  the  skill  of  a  thoroughly 
educated  physician.  "^  The  disadvantages  and  manifest  injustice  of 
such  a  standard  of  professional  excellence  have  already  been  adverted 
to.  However,  it  is  only  fair  to  redirect  attention  to  the  fact  that,  in 
Germany,  a  civil  suit  for  malpractice  is  never  tried  before  a  jury,  and 
that  all  the  scientific  points  involved  are  generally  investigated,  or  at 
least  may  be  investigated,  by  a  corps  of  medical  experts  who,  as  a  rule, 
are  really  competent  for  their  task.  As  a  rule,  the  court-physician 
(Kreisarzt)  functionates,  and  this  without  respect  to  the  school  of 
practice  which  the  defendant  has  been  following,  or  professing  to 
follow.  The  defendant  is  permitted,  however,  to  summon  as  experts 
a  number  of  physicians  of  his  own  school,  and  this  is  occasionally  done 
by  the  court  on  its  own  motion.  As  in  America,  general  practitioners 
are  often  allowed  to  testify  in  matters  which  involve  the  skill  of  spe- 


1  Owing  no  doubt  to  the  existence  of  this  rule,  malpractice  cases  are  com- 
paratively rare  in  France.  In  fact,  I  have  never  been  able  to  find  so  many  as  a 
single  instance  in  which  the  defendant  was  an  oculist.  A  number  of  cases  of  a 
general  nature  can  be  found  collected  in  Briand  et  Chaude,  Manuel  de  Medecine 
legale,  Paris,  10th  ed..  Vol.  I,  p.  73  ff.  Several  cases  (perhaps  more  accessible) 
are  collected  in  Dubrac's  Traite  de  Jurisprudence  Medicale  et  Pharmacoutique, 
Paris,  1893. 

2  The  scarcity  of  such  rules  in  Civil  Law  countries  is  owing  to  the  fact  that,  as 
stated  in  an  earlier  portion  of  this  article,  in  such  lands  the  subject  of  Evidence 
does  not  exist  as  a  well-developed  branch  of  jurisprudence. 

3  The  law  on  this  point  was,  until  Jan.  1,  1900,  landesgesetzlich  (i.  e.,  gov. 
erned  by  state  law)  and  hence  was  different  in  each  of  the  Bundesstaaten,  as  is 
the  case  in  America.  On  Jan.  1,  1900,  however,  with  the  entering  into  effect  of 
the  new  ' '  Civil  Code, ' '  the  matter  in  question  passed  under  the  federal  law,  and, 
therefore,  all  the  decisions  in  force  (so  far  as  the  decisions  of  courts  are  possessed 
of  force  in  Germany)  at  the  present  time,  are  based  on  the  following  provision 
of  that  code:  "Wer  vorsatzlich  oder  fahrlassig  das  Leben,  den  Korper,  die 
Gesundheit,  das  Eigentum  oder  ein  sonstiges  Eecht  eines  anderen  widerrechtlich 
verletzt,  ist  dem  anderen  zum  Ersatze  des  daraus  entstehenden  Schadens  ver- 
pflichtet.  Die  gleiche  Verpflichtung  trifft  denjenigen  welcher  gegen  ein  den  Schutz 
eines  anderen  bezweckendes  Gesetz  verstosst.  Ist  nach  dem  Inhalte  des  Gesetzea 
ein  Verstoss  gegen  dieses  auch  ohne  Verschulden  moglich,  so  tritt  die  Ersatz- 
pflicht  nur  im  Falle  des  Verschuldens  ein." — Burgerliches  Gesetsbuch,  Sec.  823. 

137 


OPHTHALMIC  JURISPRUDENCE 

cialists.  In  fact  the  Kreisarzt  is  almost  always,  as  a  matter  of  course, 
a  general  practitioner.  The  right  to  bring  an  action  for  malpractice 
outlaws  (verjdhrt)  not  until  three  years. 

Another  peculiarity  of  the  German  law  of  malpractice  (though 
penal,  instead  of  civil,  in  its  nature)  is  that  a  physician  is  legally  re- 
quired to  accept  a  case,  if  he  is  so  requested,  under  certain  circum- 
stances, by  a  police-court  or  any  of  its  representatives.  The  exact 
language  of  the  requirement  ^  is  as  follows :  ' '  Whoever  in  cases  of 
accident  or  of  common  danger  or  necessity  is  requested  by  a  Police 
Court  or  its  representatives  to  afford  assistance,  and  does  not  comply 
with  the  request,  although  he  might  so  do  without  material  danger  to 
himself,  is  punishable  by  a  fine  not  to  exceed  150  marks  or  by  im- 
prisonment."  This  provision  of  the  Penal  Code  is  held  to  contemplate 
professional,  as  well  as  non-professional  assistance.  Being  a  part  of 
the  Penal  Code,  it  is,  of  course,  federal  in  its  nature,  i.  e.,  nation-wide 
in  its  application. 

With  regard  to  experimentation,  I  can  do  no  better  than  quote 
from  Strassman :  ^  "  A  procedure,  merely  because  it  is  new  and  un- 
tried, cannot,  only  for  that  reason,  be  rejected  as  improper.  Were 
such  a  principle  indeed  set  in  force,  there  could  be  no  further  progress 
in  medicine.  One  can  only  require  that  a  new  and  dangerous  plan  of 
treatment  should  be  justified  in  advance  of  its  employment  by  much 
consideration  and  reflection,  by  anatomical  conditions,  and  by  experi- 
ment on  the  lower  animals.  And  one  should  be  all  the  more  ready  to 
accept  such  a  justification,  the  more  obscure  and  atypical  the  disease." 
This  opinion  is  characteristically  German,  insomuch  as  it  clearly  ad- 
mits the  necessity  for  scientific  progress  by  means  at  times  of  human 
experimentation,  and  yet,  nevertheless,  lays  down  the  only  just  condi- 
tions under  which  the  performance  of  experiments  on  human  beings 
could  be  permitted.  It  is  decidedly  in  contrast  to  the  rather  vague,  de- 
cidedly unscientific,  and  often  wholly  unjust  requirements  to  be  found 
in  the  law  of  America. 

Legal  considerations  regarding  malpractice  in  Italy. 

Physicians  in  private  practice  in  Italy  are  not  obliged  to  accept  a 
case  either  for  examination  or  for  treatment,  excepting  only  in  cases 
of  great  urgency,  when  immediate  (though  not  subsequent)  aid  and 
assistance  is  absolutely  obligatory  on  the  part  of  every  physician. 


Ziff.     10,  Str.-G.-B. 
2  Lehrbuch   der   Gerichtlichen  Medisin,   Stuttgart,    1895,    S.    545.     The   high 
degree  of  authority  conceded  to  text-books  by  the  German  courts  has  already  been 
adverted  to. 

138 


OPHTHALMIC  JURISPRUDENCE 

Physicians,  on  the  other  hand,  employed  in  the  official  medical 
sanitary  service  of  the  various  communes  of  the  Kingdom,  are  obliged 
to  accept  all  cases  that  fall  within  the  scope  of  their  employment. 
A  very  extensive  and  voluminous  law  ^  has  been  enacted  with  regard 
to  these  official  physicians,  regulating  their  appointments,  service,  com- 
pensation, responsibilities,  and  participation  in  the  benefits  of  an  elab- 
orate pension  system. 

A  non-ofificial  physician,  when  he  has  once  accepted  a  case,  becomes, 
of  course,  responsible  for  the  exercise  of  diligence  and  skill  while  in 
attendance  on  such  case.  His  civil  liability  is  regulated  not  by  any 
special  provisions,  but  by  the  general  laws  of  the  Kingdom,  contained 
in  the  Civil  Code.     These  laws  run  as  follows: 

1151.  Any  act  of  a  person  productive  of  damage  to  another,  im- 
poses on  such  person  the  obligation  to  indemnify  for  such  damage. 

1152.  Every  person  is  responsible  for  the  damage  he  has  caused, 
not  only  by  his  act,  but  also  by  his  negligence  or  imprudence. 

It  is,  of  course,  extremely  manifest  that  the  law  as  laid  down  by 
article  1151  would,  if  literally  applied,  be  of  so  great  rigor  as  absolutely 
to  prohibit  the  practice  of  medicine,  surgery,  and  obstetrics  in  Italy. 
The  courts,  however,  have,  in  practice,  very  much  mitigated  the  severity 
of  the  law  (as  applied  to  physicians)  being,  in  fact,  in  this  regard, 
almost,  if  not  quite,  as  lenient  as  are  the  courts  of  France.  Thus,  for 
a  single  example,  the  Court  of  Appeal  of  Bologna  has  said  that 
" .  .  .  professional  error  is  pardonable  in  the  liberal  pursuits  when 
.  .  .  there  is  no  gross  negligence  or  ignorance  of  clear  rules  uni- 
versally recognized  and  declared.^  So  also  Giorgi:^  ''If  errare 
humanum  est  there  exists  no  field  in  which  this  sad  truth  is  more  ap- 
plicable than  in  the  exercise  of  certain  offices  or  professions,  which 
furnish  by  their  very  nature  a  continued  theme  for  controversy  and 
for  doubt.  The  difficulty  of  tracing  out  the  elements  of  fact  which 
should  constitute  the  basis  of  any  expert  judgment;  the  variety  of 
systems  and  of  schools ;  the  occurrence  of  unexpected  events ;  the  vast 
number  of  the  causes  which  can  influence  the  result  in  any  case,  render 
excusable  any  such  errors  as  do  not  depend  on  the  violation  of  a  clear 
and  certain  precept  or  the  neglect  of  treatment  which  is  evidently 
necessary. ' ' 

A  very  peculiar  circumstance  connected  with  the  matter  in  ques- 
tion, is  that,  in  Italy,  no  civil  responsibility  ensues  till  after  a  criminal 


1  That  of  Feb.  25,  1904,  entitled  Sanitary  Assistance,  Hygienic  Vigilance,  and 
Hygiene  of  the  Communes  of  the  Kingdom. 

2  Sent.  2  maggio  1902,  Pilangieri  1902,  862. 

3  Quoted  in  the  Enciclopedia  Giuridica  Italiana,  Vol.  X,  p.  328. 

139 


OPHTHALMIC  JURISPRUDENCE 

prosecution  has  first  been  brought  against  the  physician  and  success- 
fully.    I  know  of  no  such  law  in  any  other  country. 

Another  peculiar  restriction,  if  such  it  may  be  called,  relates  to 
the  matter  of  experimentation.  In  Italy,  in  addition  to  the  usual 
restrictions  (preliminary  experimentation  on  the  lower  animals,  some 
justifiable  theory  of  benefit  to  accrue  to  the  particular  patient  who  is 
made  the  subject  of  the  experiment,  etc.,  etc.,  as  in  other  countries)  it 
is  suggested,  in  addition,  by  an  eminent  Italian  legal  authority,  that  the 
experimenter  "before  he  deduces  the  innocuousness  to  man  [of  the  pro- 
posed method]  from  the  frog,  the  rabbit  or  the  dog,  ought  to  have 
tested  the  method  on  himself. ' '  ^  This  would  seem  to  be  a  difficult 
matter  indeed  to  accomplish,  in  case  the  experimenter  did  not  happen 
to  possess  in  his  own  person  a  case  of  the  particular  malady  in  question. 
It  would  even  be  extremely  difficult  for  the  experimenter  to  test  upon 
himself  the  matter  of  dosage,  in  case  the  patient  was  a  child.  The 
restriction  might,  however,  under  certain  circumstances,  very  logically 
he  made  a  condition  precedent  of  the  performance  of  new  operations 
or  the  administering  of  new  remedies. 

In  Italy  no  higher  degree  of  care  and  skill  is  legally  required  of 
a  specialist  than  of  a  general  practitioner  in  the  same  field. 

Furthermore,  a  judgment  for  malpractice  against  a  physician  can 
be  rendered  in  that  country,  even  in  the  total  absence  of  expert  testi- 
mony, provided  the  existence  of  malpractice  is  patent  to  ordinary  ap- 
prehension— in  other  words  is  not  dependent  on  technical  medical  or 
surgical  rules  and  principles. 

This  completes  our  discussion  of  the  subject  of  malpractice  with 
respect  to  its  legal  side.-    We  will  next  take  up  the 


1  <  <  *  *  *  (jiversamente  il  medico  risolverebbe  i  problemi  scientific!  cimen- 
tando  la  salute  e  la  vita  altrui,  risparmiando  s6  stesso,  ed  allora  il  malato  diven- 
terebbe  la  bestia  da  laboratorio,  e  questa  sarebbe  seria  disonest^  prof essionale. " 
Enciclopedia  Giuridica  Italiana,  Vol.  X,  p.  331. 

2  The  following  extracts  from  the  Code  of  Hammurabi,  King  of  Babylon 
(about  2250  B.  C.)  translated  by  Eob't  Francis  Harper,  Ph.  D.,  would  seem  to 
possess  especial  interest  for  oculists,  because  without  doubt  they  constitute  the 
oldest  extant  legislation  concerning  ophthalmology : 

' '  196 — If  a  man  destroy  the  eye  of  another  man,  they  shall  destroy  his  eye. 

"198 — If  one  destroy  the  eye  of  a  freeman  or  break  the  bono  of  a  freeman, 
he  shall  pay  one  maua  of  silver. 

"199 — If  one  destroy  the  eye  of  a  man's  slave  or  break  a  bone  of  a  man 'a 
slave,  he  shall  pay  one-half  his  price. 

"215 — If  a  physician  *  *  *  open  an  abscess  (in  the  eye)  of  a  man  with 
a  bronze  lancet  and  save  that  man's  eye,  he  shall  receive  ten  shekels  of  silver 
(as  his  fee). 

"216 — If  he  be  a  freeman,  he  shall  receive  five  shekels. 

"218 — If  a  physician  *  *  *  open  an  abscess  (in  the  eye)  of  a  man  with 
a  bronze  lancet  and  destroy  the  man's  eye,  they  shall  cut  off  his  fingers. 

"220 — If  he  open  an  abscess  (in  his  eye)  with  a  bronze  lancet,  and  destroy 
his  eye,  he  shall  pay  silver  to  the  extent  of  one-half  of  his  price." 

140 


OPHTHALMIC  JURISPRUDENCE 

B — Medical  and  Surgical  Considerations  Regarding  Malpractice. 

Under  this  head  will  be  narrated  typical  and  otherwise  interesting 
cases  of  ophthalmic  malpractice  which  have  been  the  subject  of  suits 
either  actual  or  contemplated.  Excluded,  however,  will  be  all  cases 
which  have  undergone  decision  in  courts  of  last  resort,  for  the  reason 
that  the  most  important  of  such  cases  have  already  been  discussed 
under  "Considerations  Legal." 

The  largest  proportion  of  all  the  suits  and  claims  for  malpractice 
that  ever  confront  the  ophthalmic  surgeon  arise  from  strabismus 
operations.^  The  reason  is  obvious.  The  strabismic  eye  is  almost  always 
defective  in  its  vision  to  begin  with,  and,  if  the  oculist  does  not  observe 
the  precaution  to  explain  and  even  to  demonstrate  absolutely  be- 
yond cavil  the  fact  of  defective  vision  in  each  particular  case  in  which 
he  is  about  to  operate,  then,  after  the  operation,  when  the  patient, 
or  his  relatives  for  him,  are  curious  about  the  exact  results,  the 
undesirable  fact  of  complete  or  partial  blindness  comes  out,  and  the 
surgeon  is  blamed  for  the  defective  condition  of  the  sight.  Already, 
under  the  heading  of  ''Considerations  Legal,"  we  have  seen  that  several 
cases  of  malpractice  suits  following  strabismus  operations  have  even 
reached  the  courts  of  last  resort.  Here  is  another  instance.  An  oculist 
of  the  highest  standing  (scientifically  at  least)  did  a  double  internal 
advancement  for  a  girl  of  eleven  years.  He  had  made  a  record  of  the 
ease  but  had  failed  to  set  down  the  vision  of  either  eye,  nor  had  he 
directed  the  parents'  attention  to  the  fact  that  the  vision  in  both  of  the 
eyes  was  decidedly  defective.  No  doubt  the  operation  was  correctly 
performed,  but  the  immediate  effect  was  undeniably  an  over-correc- 
tion of  six  or  eight  degrees.  This  instigated  the  parents  of  the  child 
to  do  considerable  investigating  into  the  condition  of  the  eyes  on  their 
own  account  (in  which  proceeding  they  were  ably  assisted  by  a  gradu- 
ate optician)  and  at  last  they  arrived  at  the  conclusion  that  the  dis- 
tinguished oculist  had  ruined  the  eyes  of  their  child.  They  then  set  up 
a  claim  for  damages  against  the  operator,  who,  very  properly,  refused 
to  pay.  In  search  of  expert  evidence  they  returned  to  two  eye  spe- 
cialists (practising  independently  of  each  other)  by  whom  the  child 
had  been  examined  before  they  had  taken  her  to  the  man  by  whom  the 
operation  had  been  performed.  Each  of  these  oculists  had,  happily, 
made  a  complete  record  of  the  case,  including,  of  course,  the  vision  of 


For  the  rest  of  this  remarkable  code,  see  The  Code  of  Hcmmurabi,  King  of 
Babylon,  by  Eob  't  Francis  Harper,  Ph.  D.,  2d  ed.,  1904,  Chicago,  Callaghan  &  Co, 

1  So  at  least  according  to  a  collection  which  I  made  for  many  years  of  news- 
paper and  medical  journal  clippings  which  related  to  malpractice  suits,  as  well  as 
also  according  to  many  notes  which  I  made  of  various  cases  that  either  fell  within 
my  personal  experience  or  came  to  my  ears  by  reliable  report. 

141 


OPHTHALMIC  JURISPRUDENCE 

each  eye,  and  very  soon  the  parents  were  convinced  that  their  claim  for 
damages  was  unfounded.  A  laughable  feature  of  the  affair  was  that, 
when  their  child  had  been  taken  to  the  last  of  the  three  oculists  (that 
one  who  had  done  the  operation)  and  by  him  been  examined,  he  had 
expressed  (after  the  fashion  of  some  men  otherwise  sufficiently 
worthy)  several  very  decidedly  unflattering  views  of  the  professional 
attainments  and  judgment  of  the  two  oculists  who  had  been  consulted 
before  him.  Afterwards,  taxed  with  these  ungracious  opinions,  he, 
though  contritely  enough,  admitted  that  he  had  made  them. 

I  have  also  known  of  other  instances  in  which  the  defective  sight 
of  a  crossing  eye  has  given  rise  to  malpractice  suits,  or  claims,  be- 
cause, as  in  the  case  narrated,  the  surgeon  had  neglected,  before  the 
operation,  to  impress  the  patient,  or  those  responsible  for  him,  with 
the  actual  condition  of  his  sight. 

Deep  retraction  of  the  caruncle  after  a  strabismus  operation  has 
been,  in  one  instance,  the  ground  for  a  claim  for  malpractice.  The 
operation  had  been  performed  by  a  traveling  charlatan  who  was  one  of 
the  few  of  his  class  that  I  have  ever  known  to  be  made  the  subject 
of  a  claim,  or  suit,  of  this  sort. 

Next  to  strabismus  operations,  as  a  fertile  field  for  the  growing 
of  malpractice  suits,  come  the  various  foreign-body  cases;  foreign 
bodies  in  the  cornea,  foreign  bodies  in  the  aqueous,  foreign  bodies  in 
the  iris  or  the  lens,  foreign  bodies  in  the  vitreous,  and,  finally,  foreign 
bodies  in  the  posterior  wall  of  the  eye  and  even  in  the  orbital  fat.  For- 
eign bodies  in  the  cornea,  not  infrequently  (and  even  after  the  most 
aseptic  removal)  leave  infection  of  that  membrane  with  consequent 
ulceration  and  all  the  deplorable  sequelae.  In  such  cases,  just  because 
the  offending  substance  was  perhaps  extremely  minute,  the  patient 
jumps  to  the  conclusion  that  no  such  serious  consequences  would,  or 
could,  have  followed,  had  not  the  treatment  been  improper. 

Small,  hard  bodies  flying  with  great  velocity  sometimes  perforate 
the  cornea,  and  then,  if  the  patient  is  working  in  comparative  darkness, 
as  often  happens  in  the  case  of  miners,  the  pupil  is,  of  course,  rather 
widely  dilated  and  the  tiny  projectile  will  lodge  perhaps  in  the  peri- 
phery of  the  lens,  and,  later,  when  the  surgeon  examines  the  eye,  as 
he  usually  does,  with  a  very  strong  light,  he  contracts  the  pupil  and 
prevents  himself  from  seeing  the  offending  substance.  I  was  told  of  a 
ease  in  which  an  eye  was  lost,  or  was  said  to  have  been  lost,  in  this 
very  manner,  and  which  formed  the  ground  for  a  successful  claim 
for  damages. 

I  had  personal  knowledge  of  a  ease  which  formed  the  ground  of 
a  claim  for  damages  in  which  a  piece  of  steel  was  supposed  to  have 

142 


OPHTHALMIC  JURISPRUDENCE 

entered  an  eye  very  deeply.  The  attending  oculist  suggested  that  the 
eye  be  submitted  to  the  X-ray  for  the  purpose,  of  course,  of  deciding 
whether  or  not  there  was  a  foreign  body  present,  and,  further,  if  pres- 
ent, its  precise  location.  The  patient,  however,  refused  to  have  the 
skiagraph  made,  first,  because  of  what  she  regarded  as  ' '  the  very  great 
expense  which  such  a  proceeding  would  necessitate";  and  second,  be- 
cause she  had  heard  of  people  being  injured  by  the  action  of  the  Roent- 
gen ray.  At  the  time  when  the  case  appeared  before  the  oculist,  there 
was  not  to  be  seen  a  breach  of  surface  anywhere,  nor  even  a  trace  of 
any  former  breach.  The  aqueous  was  dark  with  blood,  and  so  an 
ophthalmoscopic  examination  was  impossible.  The  surgeon  combatted 
the  inflammation  for  several  days,  and  then  the  patient  sought  another 
oculist.  The  second  practitioner,  after  several  days  of  treatment,  dis- 
covered, whether  by  skill  or  by  a  lucky  chance,  the  offending  substance, 
and  removed  it  with  a  magnet.  Unfortunately,  this  second  oculist  per- 
mitted to  escape  him  certain  remarks  which  reflected  on  the  skill,  or 
judgment,  of  the  first  practitioner,  and  the  result  was  a  claim  for 
damages.  The  patient  brought  with  her  to  the  first  physician's  office, 
her  two  main  witnesses,  but  these,  fortunately  for  his  reputation,  re- 
fused to  stand  by  the  claimant's  allegations.  The  result  was  that  no 
suit  was  ever  brought.  ' 

Ophthalmia  neonatorum,  too,  presents  its  quota  of  claims  for 
damages  against  the  attending  physician,  and,  strangely  enough,  the 
disgusting  and  discreditable  character  of  the  disease  does  not  suffice 
in  every  instance  to  keep  the  claim  out  of  court.  I  know  of  a  case  in 
which  a  general  practitioner  was  sued  for  allowing  the  disease  to  occur 
without  the  slightest  effort  to  prevent  it.  He  had  known  at  the  time  of 
delivery  that  the  mother  had  recently  suffered  from  gonorrhea,  and,  in 
fact,  himself  had  treated  her  for  that  disease  up  almost  to  the  very  day 
of  labor.  The  doctor  was  given  an  opportunity  to  settle  for  a  small 
sum,  and,  very  wisely,  he  accepted  the  opportunity. 

Glaucoma,  strangely  enough,  considering  the  frequency  with 
which  the  disease  is  mistaken,  and  treated  for  iritis  and  conjunctivitis, 
has  seldom  been  the  subject  of  a  suit  for  malpractice.  I  know,  however, 
of  two  cases.  One  was  where  a  family  physician  had  treated  a  case  of 
this  disease  for  a  very  short  time  by  means  of  atropin  and  adrenalin, 
with  the  result  that  the  patient  was  very  nearly  blind,  when,  with  con- 
siderable indignation,  she  left  him  for  an  oculist.  This  oculist,  though 
he  smoothed  the  matter  over  for  the  family  practitioner,  nevertheless 
recommended,  as  was  no  doubt  his  duty,  an  immediate  iridectomy  in 
both  eyes.  But  the  operation  was  indignantly  refused.  The  patient 
called  again  on  her  family  practitioner,  who  strongly  stayed  her  up  in 

143 


OPHTHALMIC  JURISPRUDENCE 

her  contention  that  an  operation  was  entirely  unnecessary,  and  who 
also  bade  her  seek  the  services  of  another  oculist.  The  second  specialist, 
being  a  man  of  careless  speech,  said  something  which  aroused  the 
patient 's  suspicion,  and  the  result  was  a  claim  for  damages  against  the 
family  practitioner.     The  matter  was  somehow  settled. 

The  second  case  was  where  a  family  practitioner  mistaking  (as  has 
so  often  happened,  sometimes  without  the  practitioner's  fault)  glau- 
coma for  iritis,  dispatched  his  patient  to  a  pharmacy  with  a  prescription 
calling  for  cocain  with  atropin.  The  result  was  blindness  for  the  pa- 
tient, and  a  suit  for  the  doctor.  The  prescription  was  on  record,  and 
the  fact  of  absolute  glaucoma  indisputable.  The  claim  was  settled  out 
of  court  by  the  payment  of  a  small  sun. 

An  oculist  of  excellent  reputation  and  undoubted  ability,  being 
rushed  with  work,  performed  a  pterygium  operation  without  sufficient 
consideration  of  all  the  factors  in  the  case.  It  so  happened  that  the 
patient  had  dacryocystitis  on  the  same  side  as  that  on  which  the  opera- 
tion was  performed,  and  the  result  was  a  panophthalmitis.  A  claim 
followed,  which,  in  some  way,  was  settled  out  of  court. 

Now  and  then  a  cataract  operation  gives  rise  to  a  suit.  I  was  told 
by  a  friend,  an  oculist,  that,  after  a  simple  extraction  performed  by 
him,  he  was  sued  because  the  operated  eye  had  recovered  only  half  its 
vision.  The  doctor,  a  man  of  much  ability  and  the  very  greatest  cau- 
tion, knowing  exactly  what  his  rights  were,  would  not  scare  at  all,  and 
the  suit  was  abandoned. 

I  know  of  an  oculist  who  had  a  case  of  trachoma  in  the  cicatricial 
stage,  complicated  with  pannus  and  numerous  corneal  ulcers.  The 
patient  made  an  excellent  recovery,  so  at  least  the  oculist  thought,  but 
the  patient  thought  differently,  or  at  least  professed  to  do  so,  and  made 
a  claim  for  damages.  The  oculist  refused  to  pay  the  claim,  and  the 
patient  sued,  alleging  total  blindness.  Not  long  after,  and  before  the 
case  had  arisen  for  trial,  the  plaintiff  fell  from  a  tree  in  which  he  was 
picking  cherries,  and  sustained  a  fracture  of  the  occipital  bone. 
Shortly  afterward  he  died. 

Another  illustrative  case  was  this:  A  miner  was  struck  in  the  eye 
by  a  piece  of  flying  coal.  That  the  injury  was  severe  was  shown  by  the 
great  contusion  of  the  lids  and  the  formation,  subsequently,  of  a  deep 
and  angry  ulcer  on  the  cornea.  In  order  to  cure  the  ulcer  it  became 
necessary  to  perform  a  paracentesis  of  the  anterior  chamber,  and  this 
procedure  was  carried  out  with  the  very  greatest  caution.  The  patient 
got  well,  and  had  absolutely  perfect  vision — ^for  a  time  at  least.  In  the 
course  of  a  few  weeks,  however,  a  traumatic  cataract  appeared,  and  for 
this  the  operation  was  supposed  to  be  to  blame.    On  being  informed, 

144 


OPHTHALMIC  JURISPRUDENCE 

however,  that  the  blow  inflicted  by  the  coal  was  itself  entirely  responsi- 
ble for  this  late  manifestation,  the  miner,  an  exceptionally  reasonable 
man,  was  altogether  satisfied.^ 

Even  refraction  work  is  not  devoid  of  the  malpractice  danger.  I 
had  a  clipping  of  a  case  which  related  that  an  oculist,  a  man  of  merit 
and  means,  had  been  subjected  to  a  suit  because  an  optician  had  in- 
formed the  plaintiff  (and  afterwards  been  sustained  in  his  contention 
by  an  educated  oculist)  that  one  of  his  eyes  had  suffered  an  extensive 
detachment  of  the  retina  because  of  a  badly  fitting  lens.  In  another 
case,  a  claim  was  made  against  a  meritorious  oculist  because,  as  was 
alleged,  a  badly-fitting  pair  of  lenses  had  produced  a  pterygium  and 
'  *  granulated ' '  eyelids.  Here  is  still  another  case  connected  with  refrac- 
tion work.  A  lady,  aged  20,  complained  of  headache  and  rapid  ocular 
fatigue.  Test-lenses  and  ophthalmoscope  declared  the  refraction  nor- 
mal. Into  each  eye  was  instilled  thrice  daily  for  three  days  a  1  per 
cent,  solution  of  atropin.  Then  the  test-lenses  and  ophthalmoscope  re- 
vealed four  dioptres  of  hypermetropia.  Glasses  were  prescribed,  and 
she  suffered  no  longer  from  headaches  or  from  ocular  fatigue.  Never- 
theless, she  evinced  intense  dissatisfaction  because,  her  ciliary  mus- 
cles being  now  relaxed — as,  of  course,  they  ought  to  be — she  was,  as 
she  alleged,  without  her  glasses  "blind."  She  admitted  that,  with  her 
lenses,  she  saw  as  well  as  anyone,  and  had  neither  headache  nor  ocular 
fatigue,  but  all  this  very  evident  improvement  was  as  dust  and  ashes 
beside  the  over-whelming  and  heart-rending  fact  that,  without  her 
glasses  she  was  "blind."  All  the  proffered  explanations  made  by  the 
oculist  were  unheeded,  and,  indeed,  appearances,  however  unjustly, 
were  much  against  the  doctor.  Legal  proceedings  were  discussed,  and 
it  was  only  through  the  influence  of  the  general  practitioner  who  had 
referred  the  case  to  the  specialist,  and  who,  by  the  way,  was  a  relative 
of  the  plaintiff,  that  legal  action  was  averted. 

I  have  the  record  of  a  number  of  other  cases,  but  these  are  not 
especially  illustrative.  However,  I  cannot  leave  this  subject  without  a 
bit  of  moralizing — for  which,  I  trust,  the  great  importance  of  the  sub- 


1  Here  it  may  not  be  amiss  to  state  that  the  possibility  of  the  formation  of  a 
late  traumatic  cataract  should  always  be  explained  to  patients  suffering  from 
ophthalmic  trauma,  both  when  the  case  is  taken  and  again  when  the  patient  is 
discharged.  The  time  consumed  is  well  invested,  nor  need  the  patient  be  affrighted 
unduly  by  such  an  advance  explanation,  for  the  matter  can  be  represented  (as,  in 
fact,  it  ought  to  be)  as  merely  the  remotest  possibility;  and  then,  should  the 
unexpected  happen,  the  physician  is  safe. 

It  is  a  rather  suggestive  fact,  at  least  from  the  doctor's  viewpoint,  that  the 
number  of  malpractice  suits  which  a  physician  is  liable  to  encounter,  stands  in  a 
direct  ratio  to  his  ability  to  make  a  judgment  "good."  In  other  words,  such  suits 
seem  to  bear  relation  of  some  sort  to  the  doctor 's  financial  ability  rather  than  his 
scientific  inability. 

145 


OPHTHALMIC  JURISPRUDENCE 

ject  involved  will  provide  a  sufficient  excuse.  It  will  have  been  observed, 
in  nearly  all  the  cases  just  narrated,  that  the  real,  the  fundamental, 
the  underlying  cause  of  the  suit,  or  at  least  of  the  claim,  for  dam- 
ages, was  (either  by  intent  or  otherwise)  another  doctor.  This  fact 
should  give  us  pause.  There  is  also  another  fact  to  be  observed  in 
nearly  all  these  cases  which  constitutes  a  ground  for  very  serious  con- 
sideration. And  that  is  this :  The  defendant  in  nearly  every  instance, 
was  an  unusually  competent  man.  I  must  really  dissent  from  an 
opinion  quite  recently  expressed  by  an  able  lawyer  in  an  American 
surgical  system,^  which  runs  thus:  "On  the  other  hand,  the  earnest, 
diligent,  well-read,  scientific  surgeon,  who  has  a  library  and  reads  his 
journals,  who  uses  instruments  of  precision,  who  observes  approved 
methods;  the  'good,'  'reliable'  surgeon,  who  knows  how  to  reduce 
dislocations,  adjust  fractures,  tie  arteries  and  treat  wounds,  to  super- 
vise the  use  of  anesthetics,  and  to  prescribe  or  conduct  the  after  treat- 
ment, who,  after  a  careful  examination,  uses  his  best  judgment  and  skill 
in  operating,  who  is  exacting  as  to  prior  assent,  and  who  instructs 
nurse  and  patient  as  to  conduct,  while  not  immune,  has  little  to  dread 
in  the  courts."  This,  no  doubt,  is  the  strictly  legal  (also,  perhaps,  the 
strictly  public  and  general)  view  of  the  matter.  But  doctors,  to  whom 
the  subject  of  medical  and  surgical  merit  and  demerit  is  not  a  sealed, 
but  an  open  book,  are  perfectlj^  aware  that  there  could  hardly  exist  a 
greater  mistake  than  that  expressed  in  the  opinion  above-quoted. 
Quacks,  as  a  mere  matter  of  absolute  truth,  are  very  seldom  sued.  On 
the  other  hand,  the  greatest  surgeons  in  the  country,  subject  as  they  are 
to  continual  jealousy,  and  receiving,  as  they  do,  many  of  the  hardest 
and  most  inveterate  cases,  as  well  as  a  very  high  proportion  of  the 
most  dangerous,  are  almost  continually  "in  hot  water."  An  excellent 
ophthalmic  surgeon  of  my  acquaintance  has  been  sued,  or  threat- 
ened with  suit,  no  less  than  seventeen  times.  And,  though  no  judg- 
ment was  ever  rendered  against  him,  the  worry  has  hurt  him  and 
aged  him  vastly  more  than  all  his  work.  Moreover,  in  nearly  every 
instance  the  cause  of  his  trouble  was  either  the  malice  or  the  thought- 
lessness of  a  fellow  practitioner.  The  surgeon  I  have  in  mind  was 
probably  not  really  to  blame  in  any  single  instance.  And  equally  good 
men  have  not  been  quite  so  fortunate  as  he  in  the  outcome  of  their 
suits.  All  this  sad  state  of  affairs  with  regard  to  medical  and  surgical 
malpractice  could  easily  be  different.  In  the  first  place,  the  French 
standard  of  responsibility  should  be  adopted  everywhere.  The  phy- 
sician should  be  held  accountable  only  for  violations  of  clearly  eatab- 

1  Hampton  L.  Carson,  in  Keen's  Surgery,  1909,  Vol.  V,  p.  1180. 

146 


OPHTHALMIC  JURISPRUDENCE 

lished  principles — in  a  word,  for  gross  negligence  or  gross  lack  of 
skill.  Furthermore,  expert  evidence,  in  all  these  cases,  should  be 
really  expert.  Then,  too — and  this  perhaps  is  the  most  important 
matter — every  physician  who  examines  a  patient  that  has  been  to 
another  doctor,  should  be  cautious  in  every  word  that  he  utters.  Or, 
rather,  he  should  be  more  than  merely  negatively  cautious,  he  should 
be  positively  kind.  He  should  do,  in  short,  exactly  as  he  would  be 
done  by.  If  every  physician  would  only  observe  this  rule — the  golden 
rule  in  a  professional  aspect — ^he  would  never  discover  an  occasion  to 
regret  it,  whether  he  practised  in  America,  in  England,  in  Germany, 
France,  or  Italy,  or,  indeed,  in  the  remotest  portions  of  the  earth. 


With  regard  to  the  jurisdiction  of  United  States  courts  in  negligence 
cases,  I  am  greatly  indebted  to  a  private  letter  from  Judge  A.  L.  San- 
born, federal  judge  for  the  Western  District  of  Wisconsin, 

For  a  number  of  suggestions  in  the  proof  I  am  under  obligations  to 
Mr.  James  H.  Brewster,  formerly  professor  of  law  in  the  University  of 
Michigan. 

With  respect  to  foreign  law,  I  desire  to  acknowledge  my  indebtedness 
to  the  following  gentlemen,  not  only  for  references  to  useful  literature, 
but,  in  a  number  of  instances,  for  full  answers  to  specific  questions : 

E.  W.  Lee,  Dean,  Dept.  of  Law,  McGill  University,  Montreal. 

Editor  Lancet,  London. 

Mr.  John  L.  Griffiths,  late  Am.  Consul-General,  London. 

Oliver  E.  Bodington,  Esq.,  Paris. 

Dr.  E.  Sulzer,  Paris. 

Mr.  Frank  Mason,  late  Am.  Consul-General,  Paris. 

Dr.  J.  A.  Lippincott,  Nice. 

Mr.  A.  M.  Thackara,  late  Am.  Consul-General,  Berlin. 

Dr.  E.  H.  Oppenheimer,  Berlin. 

Dr.  0.  Rapmund,  Minden,  Germany. 

Mr.  Chapman  Coleman,  late  Am.  Consul,  Rome. 

Aw.  Giovanni  Ruggieri,  Rome. 

Dr.  Rudolf  F.  Ohle,  Rome. 

Sig.  Enea  Noseda,  Procuratore  del  Re,  Milan. 
I  am  also  indebted  to  Mr.  John  H.  Wigmore,  Dean  of  the  North 
western  University  Law  School,  Chicago,  for  the  privilege  of  consult- 
ing the  Gary  Collection  of  Works  on  Foreign  Law. 


147 


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